During retrial of a second degree murder charge, trial court did not err by failing to instruct the jury that the defendant was convicted in his first trial of the lesser related offense of gross vehicular manslaughter. At Hicks’ first trial for offenses related to a vehicular death, the jury deadlocked on the second degree murder charge, but convicted Hicks of gross vehicular manslaughter while intoxicated. At his retrial for second degree murder, the trial court refused a defense-requested instruction that Hicks had been convicted of gross vehicular manslaughter in his first trial. His subsequent conviction of second degree murder was affirmed on appeal. The California Supreme Court granted review on the jury instruction issue. Held: Affirmed. Retrial of the murder charge was permitted in this case because the first jury convicted defendant of lesser related offenses, and did not convict him of any necessarily included offenses. Gross vehicular manslaughter while intoxicated is a lesser related offense of murder. After reviewing case law and statutes that address jury instructions, lesser related offenses, and necessarily included offenses, the Supreme Court concluded that the instruction Hicks requested was unnecessary and disadvantaged the People. “At the heart of this case is the risk that a retrial jury asked to resolve a single charge will let considerations of punishment enter into its deliberations.” The court fashioned an instruction to use in circumstances such as this, wherein the jury is informed that cases are sometimes tried in segments and not to consider the possibility the defendant might be held criminally responsible in some other segment of the proceedings. Such an instruction would only need to be given upon request. The court disapproved People v. Batchelor (2014) 229 Cal.App.4th 1102 and People v. Johnson (2016) 6 Cal.App.5th 505, which both involved similar facts and held that the retrial jury should be informed of the defendant’s prior conviction for gross vehicular manslaughter.
The trial court’s failure to give an instruction like the one approved by the California Supreme Court in this case did not prejudice defendant. In refusing Hicks’ proposed instruction regarding his previous vehicular manslaughter conviction, the trial court said it would allow no reference to any prior proceeding or conviction. Because of its broad statement, Hicks cannot be faulted for having failed to request an instruction like the one approved by the Supreme Court in its opinion. Therefore, the court considered the question of prejudice, concluding that the Watson standard (People v. Watson (1956) 46 Cal.2d 818) applies in this context. It is not reasonably probable that Hicks would have obtained a more favorable verdict had the trial court given an approved instruction. Hicks admitted he drove at 80 miles per hour in an urban area during heavy traffic, ran red lights knowing he was doing so, and attempted to evade pursuing officers. Further, he had previously attended classes regarding the dangers of intoxicated driving, so was aware of the grave risks his conduct posed.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S232218.PDF
