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Name: People v. Barooshian (2024) 101 Cal.App.5th 461
Case #: D081050
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/16/2024
Summary

Double jeopardy principles do not prohibit a second trial for implied malice murder where defendant had already been convicted of gross vehicular manslaughter while intoxicated. In his first trial for a vehicular homicide, the jury convicted Barooshian of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). It did not reach a verdict on a Watson murder charge (People v. Watson (1981) 30 Cal.3d 290). Barooshian was retried and convicted of second degree murder. On appeal, he argued that his second trial violated double jeopardy principles. Held: Affirmed. A person may not twice be put in jeopardy for the same offense. (U.S. Const., Fifth Amend.; Calif. Const., art. I, § 15). Penal Code section 1023 is the statutory implementation of the state constitutional prohibition against double jeopardy.  It bars subsequent prosecution for a greater offense after conviction of a lesser included offense, even if the jury deadlocked on the greater offense in the first trial. Here, Barooshian acknowledged that gross vehicular manslaughter while intoxicated is not a lesser included offense of a Watson murder under the elements test but argued that section 1023 should be extended to bar subsequent prosecution for lesser related offenses. This is contrary to California Supreme Court authority as well as the plain language of section 1023, which applies to “necessarily included” offenses only. Because gross vehicular manslaughter while intoxicated is not a lesser included offense of a Watson murder under the elements test, the second prosecution was not prohibited.