Filed 5/26/20




                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

 THE PEOPLE,
                                                                   F076580
          Plaintiff and Respondent,
                                                        (Super. Ct. No. BF163700A)
                  v.

 HURIEL MACHUCA,                                                OPINION
          Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
        Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Ian
Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
                                        -ooOoo-




                                 SEE DISSENTING OPINION
                                    INTRODUCTION
       Just after midnight on March 26, 2016, defendant Huriel Machuca drove his sports
utility vehicle (SUV) through a red light at a high rate of speed, colliding with a pickup
truck carrying three young men. Two of the men in the pickup truck were severely
injured. The third died at the hospital. Blood and breath tests revealed defendant had a
blood alcohol concentration between 0.17 and 0.18 percent.
       A jury found defendant guilty of gross vehicular manslaughter while intoxicated
as to the decedent, Jade F.1 (Pen. Code, § 191.5, subd. (a);2 count 2) and found true the
additional allegation that defendant caused bodily injury to the two survivors, Julian O.
and Isaiah Z. (Veh. Code, § 23558).
       The jury found defendant guilty of driving under the influence of alcohol and
causing bodily injury to Julian (Veh. Code, § 23153, subd. (a); count 3) and driving with
an elevated blood alcohol level and causing bodily injury to Julian (id., § 23153,
subd. (b); count 4). As to both count 3 and count 4, the jury found true that defendant
also caused bodily injury to Isaiah (id., § 23558) and personally inflicted great bodily
injury upon both Julian and Isaiah (Pen. Code, § 12022.7, subd. (a)).3
       Defendant was sentenced to an aggregate prison term of 12 years and 8 months.
That term included the upper term of 10 years on count 2, a consecutive term of eight
months on count 3, and two 1-year terms for the great bodily injury enhancements to
count 3. Sentence on count 4 and the remaining enhancements was stayed pursuant to
section 654.

1       Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their
first names. No disrespect is intended.
2      Undesignated statutory references are to the Penal Code.
3      Defendant also was acquitted of second degree murder (§ 187, subd. (a); count 1),
but found guilty of the lesser included offense of involuntary manslaughter (§ 192,
subd. (b)). However, because involuntary manslaughter does “not apply to acts
committed in the driving of a vehicle” (§ 192, subd. (b)), this count was dismissed.


                                             2.
       On appeal, defendant contends his convictions in counts 3 and 4 must be
dismissed because a violation of Vehicle Code section 23153 is a lesser included offense
of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) when the offenses
arise from a single incident.
       A violation of Vehicle Code section 23153 is not a lesser included offense of gross
vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) when, as here, the offenses
involve separate victims. We affirm.
                                           FACTS
       The underlying facts are not meaningfully in dispute.
       On the evening of March 25, 2016, childhood friends Jade, Julian, and Isaiah
drove together in Julian’s truck to a party in Bakersfield. However, they “didn’t have a
good feeling about the party,” and immediately left to get something to eat at a nearby
fast food establishment. Julian drove, Isaiah sat in the middle, and Jade sat in the
passenger seat. Just after midnight, while Julian attempted to make a U-turn at an
intersection near the fast food restaurant, defendant ran his SUV through a red light at a
high rate of speed and collided with Julian’s truck. Witnesses saw this. Video
surveillance showed defendant entered the intersection nine seconds after his light turned
red. Data retrieved from defendant’s SUV showed he accelerated from 81 to 88 miles per
hour immediately before the collision.
       When law enforcement arrived, Julian’s truck was partially wrapped around a
traffic pole and defendant’s SUV had extensive front-end damage. Defendant was
standing near the front of the SUV. He admitted he was the driver of the SUV and he
declined medical attention. Jade’s upper torso was hanging out of the passenger side
window of the truck and he was unresponsive. Isaiah and Julian were inside the truck,
screaming or yelling for help. Officers removed the truck’s driver’s side door and
assisted Julian out of the truck. Firefighters cut the truck to extract Isaiah and Jade.



                                              3.
       Julian suffered a severe liver laceration, bruised lungs, fractured ribs, and a cut to
his eardrum that temporarily impaired his hearing. His entire body was sore, and he was
given a soft cast for his hand. Isaiah had fractured ribs, lacerations to his liver and
kidney, and bruised lungs. He also was given a neck brace. Jade was non-responsive
when he arrived at the hospital and required CPR to regain a pulse. A CAT scan revealed
that he had been internally decapitated. He also had bruised lungs, fractured ribs, a
severe liver injury, and multiple pelvic fractures. He died during surgery.
       Defendant admitted drinking alcohol prior to the collision, but made different
statements to different officers regarding the amount he had consumed. His performance
on field sobriety tests was consistent with alcohol impairment. A preliminary alcohol
screening test performed at 1:08 a.m. showed that defendant had a blood alcohol
concentration of 0.17 percent. Two evidentiary breath tests performed at 1:15 a.m. and
1:18 a.m., respectively, showed defendant had a blood alcohol concentration of 0.18
percent. A blood draw performed at 2:19 a.m. showed defendant had a blood alcohol
concentration of 0.177 percent. Defendant also had a prior conviction for driving while
intoxicated in another state.
       Julian denied drinking alcohol prior to the collision. Blood and breath tests
revealed he had a blood alcohol concentration of 0.00 percent.
                                       DISCUSSION
       Defendant contends his convictions for driving under the influence causing bodily
injury (Veh. Code, § 23153, subd. (a); count 3) and driving with a blood alcohol
concentration of 0.08 percent or more and causing bodily injury (id., § 23153, subd. (b);
count 4) must be reversed because they are lesser included offenses of gross vehicular
manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a); count 2). We conclude
the convictions are proper because counts 3 and 4 arose from injuries to a different victim
than the conviction on count 2.



                                              4.
       “In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct. ‘In California, a single act or
course of conduct by a defendant can lead to convictions “of any number of the offenses
charged.” ’ ” (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) “Section 954
generally permits multiple conviction.” (Id. at p. 1227.) “However, a judicially created
exception to this rule prohibits multiple convictions based on necessarily included
offenses.” (People v. Ramirez (2009) 45 Cal.4th 980, 984.) “ ‘In deciding whether
multiple conviction is proper, a court should consider only the statutory elements.’
[Citation.] ‘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.’ [Citation.] 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 (2012) 55 Cal.4th 731, 737 (Sanders).) “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.” (Id. at p. 736.)
       As relevant here, section 191.5, subdivision (a) defines gross vehicular
manslaughter while intoxicated 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.” (Ibid.) Thus, a violation of
Vehicle Code section 23153 constitutes one way that gross vehicular manslaughter while
intoxicated may be committed. Vehicle Code section 23153 provides that the offense of
driving under the influence and causing bodily injury to another person may be

                                              5.
committed in various ways, including driving under the influence of any alcoholic
beverage (id., subd. (a)), driving with a blood alcohol concentration of 0.08 percent or
more (id., subd. (b)), or driving a commercial vehicle with a blood alcohol concentration
of 0.04 percent or more (id., subd. (d)).
       In People v. Miranda (1994) 21 Cal.App.4th 1464 (Miranda), the defendant was
convicted on several charges relating to the death of a single victim, including gross
vehicular manslaughter while intoxicated and driving under the influence causing bodily
injury. (Id. at p. 1466.) On appeal, the defendant argued his conviction for driving under
the influence causing bodily injury was a lesser included offense of gross vehicular
manslaughter while intoxicated. (Id. at pp. 1466-1467.) The Court of Appeal agreed,
concluding that gross vehicular manslaughter while intoxicated could not be committed
without also violating Vehicle Code section 231534: “One person who injures a person
while driving under the influence commits a violation of Vehicle Code section 23153;
and if that person dies from that injury—whether immediately or sometime later—a
violation of Penal Code section 191.5 has occurred.” (Miranda, supra, at p. 1468.)
Accordingly, the court determined the defendant’s conviction for violating Vehicle Code
section 23153 could not stand. (Miranda, at p. 1468.)
       Similarly, in People v. Binkerd (2007) 155 Cal.App.4th 1143 (Binkerd), the
defendant pled no contest to driving under the influence causing bodily injury (Veh.
Code, § 23153, subd. (a)), and vehicular manslaughter without gross negligence (former
§ 192, subd. (c)(3), now codified at § 191.5, subd. (b)) in relation to the death of a single

4      At the time the offense described in Miranda was committed, gross vehicular
manslaughter while intoxicated required a violation of either section 23152 or section
23153 of the Vehicle Code. (See Miranda, supra, 21 Cal.App.4th at p. 1468.) Vehicle
Code section 23152 proscribed then, as it does now, essentially the same conduct as
Vehicle Code section 23153, but without the requirement of causing bodily injury. Penal
Code section 191.5, subdivision (a) was later amended to add Vehicle Code section
23140 as an additional possible means of committing gross vehicular manslaughter while
intoxicated. (See Stats. 1994, ch. 71, § 1.)


                                              6.
victim. (Binkerd, at pp. 1145-1146.) On appeal, the defendant argued her conviction for
driving under the influence causing bodily injury was a lesser included offense of
vehicular manslaughter without gross negligence, and the court agreed. (Id. at p. 1147.)
Citing Miranda, supra, 21 Cal.App.4th 1464, the court concluded the two statutes
differed only in the extent of the resulting injury, and that the defendant could not have
committed vehicular manslaughter without necessarily injuring the victim. (Binkerd, at
p. 1148.)
       The convictions at issue in Miranda and Binkerd involved the injury and death of
a single victim. Indeed, their holdings were expressly predicated on this fact, as the court
in both cases reasoned the defendant could not have committed vehicular manslaughter
without also injuring the decedent. (Miranda, supra, 21 Cal.App.4th at p. 1468; Binkerd,
supra, 155 Cal.App.4th at p. 1148.) In contrast, here, the Vehicle Code section 23153
violations were based on injury to Julian, while the manslaughter count arose from the
death of Jade. In this circumstance, the reasoning of Miranda and Binkerd does not
support the conclusion that Vehicle Code section 23153 is a lesser included offense,
because defendant could have killed Jade in violation of Penal Code section 191.5,
subdivision (a), without injuring Julian in violation of Vehicle Code section 23153.
       Moreover, two decisions of our Supreme Court support the conclusion 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. First, in Wilkoff v. Superior
Court (1985) 38 Cal.3d 345 (Wilkoff), the defendant caused a four-vehicle collision that
resulted in the death of one individual and injury to five others. (Id. at pp. 347-348.) She
was charged with one count of vehicular manslaughter (former § 192), as well as one
count of driving under the influence of alcohol (Veh. Code, § 23153, subd. (a)) and one
count of driving with a blood alcohol level of 0.10 or above (Veh. Code, § 23153, former
subd. (b)) for each of the six victims, including the decedent. (Wilkoff, at p. 348.)



                                             7.
       Defendant Wilkoff sought to dismiss 10 of the 12 felony drunk driving counts,
arguing that only one count of Vehicle Code section 23153, subdivision (a), and one
count of Vehicle Code section 23153, former subdivision (b) could arise from a single
incident of driving under the influence, even when more than one person is injured.
(Wilkoff, supra, 38 Cal.3d at p. 348.) Our Supreme Court agreed, holding that “the
gravamen of the offense” under Vehicle Code section 23153 is the act of driving a
vehicle while intoxicated which, in a single driving incident, occurs only once. (Wilkoff,
at p. 349.) The court contrasted this with the offense of vehicular manslaughter, where
the prohibited act of committing an unlawful killing may be committed several times in
the course of a single driving incident. (Id. at pp. 349-350.) The court noted that “[a]
defendant may properly be convicted of multiple counts for multiple victims of a single
criminal act only where the act prohibited by the statute is centrally an ‘act of violence
against the person.’ ” (Id. at p. 351.) Accordingly, the high court ordered the trial court
to set aside all the felony drunk driving counts, with the exception of one count under
subdivision (a) and one count under former subdivision (b) of Vehicle Code section
23153. (Wilkoff, at pp. 353-354.) Notably, the court left undisturbed the charge of
vehicular manslaughter. (Id. at pp. 348, 354.)
       In People v. McFarland (1989) 47 Cal.3d 798 (McFarland), the defendant pled no
contest to vehicular manslaughter with gross negligence (former § 192, subd. (c)(3), now
codified in § 191.5) and two counts of driving under the influence causing bodily injury
(Veh. Code, § 23153, subd. (a)), arising from an incident in which one person was killed
and two others were injured. The Court of Appeal concluded the defendant could
properly be sentenced for both the manslaughter conviction and one count of driving
under the influence in violation of Vehicle Code section 23153. (McFarland, at p. 802.)
Our Supreme Court agreed, rejecting the defendant’s argument that section 654




                                             8.
prohibited sentencing on both one count of manslaughter and one count of felony drunk
driving:5

       “ ‘A defendant may properly be convicted of multiple counts for multiple
       victims of a single criminal act . . . where the act prohibited by the statute is
       centrally an “act of violence against the person.” ’ [Citations.] Plainly,
       vehicular manslaughter with gross negligence constitutes a crime of
       violence against the person. [Citation] [¶] Thus, we are satisfied that
       where, as here, a defendant commits vehicular manslaughter with gross
       negligence—an act of violence against the person—he may properly be
       punished for injury to a separate individual that results from the same
       incident.” (McFarland, supra, 47 Cal.3d at pp. 803-804, fn. omitted.)
       Thus, McFarland held that a defendant may properly be sentenced for both
vehicular manslaughter of one victim and driving under the influence causing bodily
injury to a separate victim, but did not expressly address the multiple conviction issue
raised here. However, if Vehicle Code section 23153 constituted a lesser included
offense of vehicular manslaughter in a multiple victim case, the proper result in
McFarland would have been reversal of the Vehicle Code section 23153 conviction,
rather than upholding the defendant’s sentence on that count. (See Sanders, supra, 55
Cal.4th at p. 736 [requiring reversal of lesser included offense when evidence supports
conviction on the greater].) Because the court held the sentence was proper, McFarland
necessarily suggests a defendant may properly be convicted under both Penal Code
section 191.5, subdivision (a) and Vehicle Code section 23153, subdivision (a) when the
offenses involve different victims. This is because a defendant cannot be properly
sentenced on a count for which he was not properly convicted. Accordingly, a holding
that Vehicle Code section 23153 constitutes a lesser included offense of Penal Code

5      “Section 954 concerns multiple convictions. Section 654 is its counterpart
concerning punishment. It prohibits multiple punishment for the same ‘act or omission.’
When section 954 permits multiple conviction, but section 654 prohibits multiple
punishment, the trial court must stay execution of sentence on the convictions for which
multiple punishment is prohibited.” (People v. Reed, supra, 38 Cal.4th at p. 1227;
accord, Sanders, supra, 55 Cal.4th at p. 743.)


                                              9.
section 191.5, subdivision (a) in these circumstances would have the effect of abrogating
our Supreme Court’s holding in McFarland, a power which we do not possess. (See
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
       Defendant nonetheless contends Vehicle Code section 23153 is always a
necessarily included offense of gross vehicular manslaughter while intoxicated, even
when the offenses involve different victims, because the identity of the victim is not an
element of felony drunk driving under the statutory elements test. (See Sanders, supra,
55 Cal.4th at p. 737 [applying statutory elements test to determine whether one offense is
necessarily included in the other].) The cases cited by defendant do not support this
proposition. (E.g., People v. Walker (2014) 231 Cal.App.4th 1270, 1276 [holding that
failure to name individual victims of a Veh. Code, § 23153 violation in the charging
document was irrelevant to court’s ability to award restitution to such victims]; People v.
Griggs (1989) 216 Cal.App.3d 734, 739, 742 [holding, where the defendant shot a
firearm into a large crowd, that an “identifiable victim” is not a necessary element of
assault with a deadly weapon because “[a]ll that is necessary is that there is a victim” and
“the characteristics of the victim [such as fear, lack of fear, injury, or lack of injury] are
not critical elements of the offense”].) Moreover, any violation of Vehicle Code section
23153 requires that the defendant caused bodily injury to a person. When someone other
than the manslaughter victim is injured, charges for both gross vehicular manslaughter
while intoxicated and felony drunk driving are permissible. (McFarland, supra, 47
Cal.3d at pp. 803-804; accord, Wilkoff, supra, 38 Cal.3d at pp. 348, 353-354.)
       Defendant also points out that, in People v. Givan (2015) 233 Cal.App.4th 335,
this court concluded a defendant could not be convicted of both driving under the
influence and causing bodily injury (Veh. Code, § 23153, subd. (a)), and gross vehicular
manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), despite the incident
involving multiple victims. (Givan, at pp. 338-339, 351.) However, in Givan, the People



                                              10.
conceded the issue and the question was not addressed in any substantive detail. (Id. at
p. 351.) We therefore do not find Givan persuasive on this point.
       Finally, we note that permitting convictions for both felony drunk driving and
gross vehicular manslaughter while intoxicated when the convictions relate to different
victims gives effect to the intent of the Legislature. When our Supreme Court in Wilkoff
interpreted Vehicle Code section 23153, subdivisions (a) and (b), to allow for only one
charge of felony drunk driving under each subdivision, irrespective of the number of
individuals who are injured (Wilkoff, supra, 38 Cal.3d at p. 349), the Legislature
responded by enacting sentencing enhancements for each additional injured victim (see
Stats. 1985, ch. 902, § 1, adding former Veh. Code, § 23182, now codified at Veh. Code,
§ 23558; see also McFarland, supra, 47 Cal.3d at p. 805 [discussing legislative intent of
Veh. Code, § 23182]). When the Court of Appeal in McFarland later determined this
enhancement did not apply to a manslaughter conviction, the Legislature promptly
responded by amending the statute to extend the enhancement to drunk driving that
causes “ ‘bodily injury or death.’ ” (McFarland, at p. 805 [quoting Stats. 1988, ch. 1264,
§ 1].) In so doing, the Legislature “left undisturbed” the court’s holding that “separate
punishment may be imposed where a single drunk-driving incident results in multiple
injuries and separate convictions of felony drunk driving and vehicular manslaughter.”
(McFarland, at p. 806.) In this circumstance, we must presume the Legislature
intentionally declined to amend either statute to preclude separate convictions and
punishment. (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734 [“It is a well-
established principle of statutory construction that when the Legislature amends a statute
without altering portions of the provision that have previously been judicially construed,
the Legislature is presumed to have been aware of and to have acquiesced in the previous
judicial construction.”]; accord, McFarland, at p. 805.)
       Defendant was convicted on count 2 for gross vehicular manslaughter while
intoxicated of Jade in violation of section 191.5, subdivision (a). He was convicted on

                                            11.
counts 3 and 4 for drunk driving and causing injury to Julian under Vehicle Code section
23153, subdivisions (a) and (b), respectively. Because the offenses involved different
victims, counts 3 and 4 are not necessarily included offenses of count 2. (See
McFarland, supra, 47 Cal.3d at p. 804.)
                                     DISPOSITION
      The judgment is affirmed.




                                                                    DETJEN, Acting P.J.
I CONCUR:



DE SANTOS, J.




                                           12.
SNAUFFER, J., Dissenting.
       This appeal presents a purely legal question. Does a violation of Penal Code
section 191.5, for vehicular manslaughter while intoxicated against one victim,
necessarily include a violation of Vehicle Code section 23153, for driving while
intoxicated and proximately causing bodily injury, to a different victim? I believe the
answer is yes. Because the majority concludes otherwise, I respectfully dissent.
                                       DISCUSSION
       The majority concludes “[a] violation of Vehicle Code section 23153 is not a
lesser included offense of gross vehicular manslaughter while intoxicated ([Pen. Code,]
§ 191.5, subd. (a)) when, as here, the offenses involve separate victims.” (Maj. opn.,
ante, at p. 3.) I disagree for the following reasons.
       At the outset, “it is important to distinguish [between two] related but distinct
concepts: … multiple conviction[] and multiple punishment.” (People v. Correa (2012)
54 Cal.4th 331, 336 (Correa).) “It is also important to recognize that [Penal Code]
section 654 concerns only multiple punishment, not multiple convictions.” (Ibid.)
       “In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct. ‘In California, a single act or
course of conduct by a defendant can lead to convictions “of any number of
the offenses charged.” [Citations.]’ [Penal Code] section 954 generally permits multiple
conviction. [Penal Code] section 654 is its counterpart concerning punishment. It
prohibits multiple punishment for the same ‘act or omission.’ When [Penal Code]
section 954 permits multiple conviction, but [Penal Code] section 654 prohibits multiple
punishment, the trial court must stay execution of sentence on the convictions for which
multiple punishment is prohibited.” (People v. Reed (2006) 38 Cal.4th 1224, 1226–1227
(Reed).)
       However, “[a] judicially created exception to the general rule permitting multiple
conviction ‘prohibits multiple convictions based on necessarily included offenses.’
[Citation.] ‘[I]f a crime cannot be committed without also necessarily committing a
lesser offense, the latter is a lesser included offense within the former.’ ” (Reed, supra,
38 Cal.4th at p. 1227.) “ ‘To permit conviction of both the greater and the lesser offense
‘ “ ‘would be to convict twice of the lesser.’ ” ’ ” (People v. Medina (2007) 41 Cal.4th
685, 702 (Medina).) “The doctrine of lesser included offenses is, at its core, a doctrine
about legislative intent. It ‘is part of the constitutional guarantee against double
jeopardy.’ ” (People v. Sanders (2012) 55 Cal.4th 731, 745 (conc. opn. of Liu, J.).)
       When considering whether “a defendant may be convicted of multiple charged
crimes,” courts should consider “only the statutory elements.” (Reed, supra, 38 Cal.4th
at p. 1231.) Based on the statutory elements, Vehicle Code section 23153 is necessarily
included within Penal Code section 191.5, subdivision (a). (People v. Givan (2015)
233 Cal.App.4th 335, 351; People v. Binkerd (2007) 155 Cal.App.4th 1143, 1149-1150;
People v. Miranda (1994) 21 Cal.App.4th 1464, 1468.)
       The circumstance of nominally distinct victims to each offense does not compel a
different conclusion. Vehicle Code section 23153 is an offense that proscribes driving
while intoxicated, not the resulting injury. Penal Code section 191.5 involves the
identical driving act, but proscribes the resulting homicide.
       In Wilkoff v. Superior Court, the Supreme Court held “one instance of
[intoxicated] driving is chargeable as only one count of felony [intoxicated] driving …
even if more than one person is injured thereby.” (Wilkoff v. Superior Court (1985)
38 Cal.3d 345, 349 (Wilkoff).) “Wilkoff was not based upon [Penal Code] section 654,
but rather upon the language of, and the legislative intent underlying, Vehicle Code
section 23153 ….” (People v. McFarland (1989) 47 Cal.3d 798, 805 (McFarland).)




                                              2.
       “The actus reus of vehicular manslaughter is homicide—the unlawful killing of a
human being.”1 (Wilkoff, supra, 38 Cal.3d at p. 349.) “In contrast … the act prohibited
by [Vehicle Code] section 23153 is defined in terms of an act of driving: the driving of a
vehicle while intoxicated and, when so driving, violating any law relating to the driving
of a vehicle. The actus reus of the offense does not include causing bodily injury.
Rather, where bodily injury proximately results from the prohibited act, the offense is
elevated from a misdemeanor to a felony.” (Id. at p. 352.)
       Based on the above principles, I would hold that where a defendant is convicted of
violating Penal Code section 191.5, he or she may not also be convicted of Vehicle Code
section 23153 for an offense involving the same act of driving because it is a necessarily
included offense even when the victims are different.2 Two reasons underly this
conclusion.
       First, the nominal victim in a Vehicle Code section 23153 offense is immaterial
because the offense is “ ‘defined in terms of an act of driving: the driving of a vehicle
while intoxicated and, when so driving, violating any law relating to the driving of a
vehicle.’ ” (Wilkoff, supra, 38 Cal.3d at p. 352.) Second, “[t]he legislative response
to Wilkoff was the enactment of Vehicle Code section [23558], which provides
enhancements for each additional injured victim. [Citation.] Thus … the Legislature …
implicitly approved the Wilkoff interpretation [that] Vehicle Code section 23153”


       1The court acknowledged one instance of intoxicated driving resulting in multiple
homicides is chargeable as multiple counts of vehicular manslaughter. (Wilkoff, supra,
38 Cal.3d at pp. 349-350.)
       2 A defendant may appropriately be charged and convicted for multiple offenses
stemming from separate acts of driving. (See Wilkoff, supra, 38 Cal.3d at p. 349, fn. 4
[“By ‘one instance’ of drunk driving we refer to one volitional act of driving. Thus if a
driver collides with one car and is involuntarily propelled into a second car, only ‘one
instance’ of driving has occurred. But if a driver collides with the first car and
then voluntarily drives further and collides with a second car, then two acts of driving
have occurred and the driver may be charged with two counts of felony drunk driving.”].)


                                             3.
proscribes driving rather than the resulting injury.3 (McFarland, supra, 47 Cal.3d at
p. 805.)
       The Vehicle Code section 23558 enhancement expresses the Legislature’s
intended punishment for intoxicated driving that results in multiple injured victims.
(McFarland, supra, 47 Cal.3d at p. 805.) The enhancement’s applicability was
subsequently extended to Penal Code section 191.5. (McFarland, at p. 801, fn. 4.) Its
extension logically expresses the same legislative intent for intended punishment. And
legislative intent is at the core of the judicial exception to multiple convictions. (Medina,
supra, 41 Cal.4th at p. 702.)
       Because Vehicle Code section 23153 prohibits intoxicated driving, and Penal
Code section 191.5 prohibits intoxicated driving resulting in homicide, to permit
convictions for both is to “ ‘ “ ‘convict twice of the lesser,’ ” ’ ” separate victims
notwithstanding. (Medina, supra, 41 Cal.4th at p. 702.) This is impermissible.
       Consider, for example, the courtroom reality in these multiple injured victim
intoxicated driving cases. In one count, the defendant is charged with vehicular
manslaughter. The judge also instructs the jury on the necessarily lesser included offense
of driving while intoxicated and proximately causing injury to the same manslaughter
victim.4 In a separate count, the defendant is charged with driving while intoxicated and
proximately causing injury to a distinct nominal victim. Viewed properly, the potential
verdicts violate the rule announced in Wilkoff, supra, because a defendant may be
charged with and punished for only one intoxicated driving offense.5 (Wilkoff, supra,


       3 At the time Wilkoff, supra, was decided, the enhancement was numbered Vehicle
Code section 23182. It was renumbered to Vehicle Code section 23558 in 1999.
(Stats. 1998, ch. 118, § 84.)
       4   As occurred in this case.
       5Wilkoff considered and rejected the People’s argument a defendant must await
conviction on all charges prior to moving to dismiss impermissible convictions. Neither

                                              4.
38 Cal.3d at p. 352 [“Defendants are not chargeable with a greater number of offenses
simply because the injuries proximately caused by their single offense are greater.”];
McFarland, supra, 47 Cal.3d at p. 805 [a “defendant may be punished for only one
violation of Vehicle Code section 23153”].)
       The practical end result is minimal, as current law permits a maximum eight
month consecutive sentence for Vehicle Code section 23153 convictions in conjunction
with a vehicular manslaughter while intoxicated conviction. (Pen. Code, § 1170.1, subd.
(a).) Indeed, in a case involving one fatality and one separately injured victim, a
defendant is punished more harshly via the one year Vehicle Code section 23558
enhancement for multiple injured victims than a separate intoxicated driving conviction.6
(See McFarland, supra, 47 Cal.3d at p. 805, fn. 8 [multiple injured victim enhancement
cannot be based on separate intoxicated driving charge].)
       In holding otherwise, the majority relies heavily on McFarland, supra. There, the
Supreme Court held “where … a defendant commits vehicular manslaughter with gross
negligence—an act of violence against the person—he may properly be punished for
injury to a separate individual that results from the same incident.” (McFarland, supra,
47 Cal.3d at p. 804.) But multiple punishment is not equivalent to multiple convictions.

multiple charges nor multiple convictions are permitted. (Wilkoff, supra, 38 Cal.3d at
p. 353, fn. 12.)
       6 The ultimate punishment varies slightly depending on the number of victims and
to a lesser extent on the severity of injuries. A multiple injured victim enhancement is
punishable by an additional year in prison. (Veh. Code, § 23558.) A great bodily injury
enhancement is generally punishable by three additional years in prison. (Pen. Code,
§ 12022.7, subd. (a).) The Legislature limited the multiple injured victim enhancement to
three additional years but no such limitation applies to great bodily injury enhancements.
Great bodily injury enhancements, however, are generally reduced to an equivalent one
additional year because they attach to subordinate terms in this context. (Pen. Code,
§ 1170.1, subd. (a).) But a great bodily injury enhancement cannot attach to a
manslaughter conviction. (Pen. Code, § 12022.7, subd. (g); People v. Cook (2015)
60 Cal.4th 922, 928.) Of course, the Legislature could choose to amend these provisions
to provide for any punishment it deems reasonable.


                                              5.
(See Correa, supra, 54 Cal.4th at p. 336; Reed, supra, 38 Cal.4th at pp. 1226-1227.) The
issues are distinct.
       The majority acknowledges McFarland “did not expressly address the multiple
conviction issue raised here,” yet concludes that “[b]ecause the court held the sentence
was proper, McFarland necessarily suggests a defendant may properly be convicted
under both Penal Code section 191.5, subdivision (a) and Vehicle Code section 23153,
subdivision (a) when the offenses involve different victims.” (Maj. opn., ante, at p. 9.)
The majority also finds it notable Wilkoff “left undisturbed the charge of vehicular
manslaughter.” (Maj. opn., ante, at p. 8.) But “cases are not authority for propositions
that are not considered.” (California Building Industry Assn. v. State Water Resources
Control Bd. (2018) 4 Cal.5th 1032, 1043.)
       The majority also concludes a “holding that Vehicle Code section 23153
constitutes a lesser included offense of Penal Code section 191.5, subdivision (a) in these
circumstances otherwise would have the effect of abrogating our Supreme Court’s
holding in McFarland ….” (Maj. opn., ante, at p. 10.) However, in my view,
McFarland simply held that the circumstances justify multiple punishment. The opinion
does not address multiple convictions. A holding that multiple convictions are
impermissible permits multiple punishment via the multiple injured victim enhancement.
       In sum, the judicial exception to multiple convictions based on necessarily
included offenses applies to Penal Code section 191.5 and Vehicle Code section 23153
regardless of nominally distinct victims. The Vehicle Code section 23153 offense is
subsumed within Penal Code section 191.5 because it involves the identical act of
driving.




                                             6.
                             CONCLUSION
I would reverse the convictions in counts 3 and 4 and remand for resentencing.




                                                                  SNAUFFER, J.




                                    7.
