The judge in the “second degree implied malice murder” trial of an inebriated man, who hit and killed a six-year-old girl, did not have to instruct the jury to consider a lesser related offense such as “gross vehicular manslaughter while intoxicated.” The driver was convicted and sentenced to 15 years to life in prison. His appeal was denied by a California appellate court.

Defendant/appellant Maximino Delgado Lagunas had two previous arrests for driving under the influence of alcohol (DUI) when he failed to make a safe turn and hit a six-year-old girl who was playing outside with her brother. She was taken to the hospital but died of “multiple vehicular blunt force injuries.”

When the police arrived, they examined Lagunas and spoke with neighbors who had witnessed the accident. They concluded that Lagunas was under the influence of alcohol, although he claimed the accident was caused by the failure of the brakes in his car. He later admitted that he had consumed three beers before getting in the car. When he learned of the girl’s death, “he put his face in his hands and said that was horrible.”

Lagunas had DUIs in both 2007 and 2015. In both cases, judges had warned him that continuing to drive while intoxicated could lead to a conviction for murder. He received the same warnings at meetings of Alcoholics Anonymous. He clearly knew the consequences of his actions.

His murder trial before Orange County Superior Court Judge Michael A. Leverson featured testimonies from experienced traffic investigators, evidence experts who found no problem with the brakes of the car he was driving, and forensic scientists who estimated that his blood alcohol content was between .22 and .23 percent at the time of the accident. The jury also heard recordings of the defendant’s interviews with police, during which he admitted he knew that a DUI that resulted in death could lead to a murder conviction.

On appeal to Division Three of California’s Fourth District Court of Appeal, a three-justice panel affirmed his conviction on December 12. In a 3-0 unanimous opinion authored by Acting Presiding Justice Eileen C. Moore, the court considered each of Lagunas’ two arguments for a lesser sentence. He said that there was “insufficient evidence to support his murder conviction” because he lacked “actual malice,” and argued the trial court erred when it did not instruct the jury about the possibility of the lesser offense of vehicular manslaughter.

Moore’s opinion rejected each argument. She provided evidence from precedents that ruled “malice may be implied when a person drives a motor vehicle under the influence of alcohol and kills someone.” She further noted that “It also may be presumed that defendant was aware of the hazards of driving while intoxicated.” She wrote that Lagunas met the test of whether there was sufficient evidence for upholding a murder conviction. He had a blood alcohol level above the .08 percent legal limit, he had a “predrinking intent to drive,” he was aware of the “hazards of driving while intoxicated,” and his driving was “highly dangerous.”

Lagunas tried to distinguish the precedents from his behavior by arguing that the facts in the cases cited by the judge were more “egregious” than the facts in his case. Moore disagreed, saying, “… We do not find Lagunas’ factual comparisons to be persuasive.” The Justice further explained that Lagunas’ argument “does not negate the substantial evidence that exists in this case.” She wrote that the appellate court’s role in a “sufficiency of the evidence review” is “not to engage in a comparative analysis of various cases, but rather to carefully scrutinize the record in the instant case for substantial evidence (as we have).”

The opinion also disregarded defendant’s attempt to say that the brakes and steering systems in his car failed to work because of the expert testimony presented at trial.

Lagunas’ final argument was based on Leverson’s failure to instruct the jury about the possibility of his being convicted of a lesser included offense, that of “gross vehicular manslaughter while intoxicated.” The appellant tried to cite various legislative statutes to support his argument. But Moore was not persuaded by this either. She wrote that vehicular manslaughter included two elements that were not present in a murder charge. These were defendant’s use of a vehicle and his intoxication.

Moore wrote that the California Supreme Court had concluded that “the lesser crime was not necessarily included within the greater.” She wrote, “…vehicular manslaughter while intoxicated … is not a lesser included offense of a murder charge.” She cited the general vehicular manslaughter statute to support her ruling and noted that “…Since a second degree (implied malice) murder conviction does not necessarily require proof of either of those two elements, the Court concluded that the

lesser crime was not necessarily included within the greater..) Thus, the Court explicitly held that “gross vehicular manslaughter while intoxicated should not be treated as a lesser included offense of murder.”

In summary, she concluded, “… we have found absolutely no statutory language whatsoever (ambiguous or otherwise) that indicates the Legislature intended that a gross vehicular manslaughter while intoxicated charge (§ 191.5) is a lesser included offense of a murder charge; …therefore, we need not address Lagunas’ rather extensive legislative history arguments.” Neither does “the failure to instruct on a vehicular manslaughter charge as a lesser included offense of a murder charge… offend equal protection principles.”

In conclusion, while affirming the judgment of the Orange County Superior Court, the Court of Appeal wrote, “(A) there was sufficient evidence to support Lagunas’ second degree murder conviction; and (B) the trial court did not commit error by failing to instruct the jury on its own motion on the lesser related offense of gross vehicular manslaughter while intoxicated.”