During defendant’s retrial for second degree murder, trial court erred by not instructing the jury that defendant was previously convicted of gross vehicular manslaughter and hit and run. While driving under the influence of alcohol, Johnson struck and killed a bicyclist then fled the scene. In his first trial he was convicted of gross vehicular manslaughter while intoxicated, hit and run, and other offenses. The jury could not reach a verdict on the charge of second degree murder, resulting in a mistrial. After retrial, Johnson was convicted of murder. On appeal he claimed the trial court erred in refusing to inform the jury of his convictions for gross vehicular manslaughter and hit and run in the first trial, telling the jury only that he had been convicted of “two of the three charges,” and in prohibiting his attorney from mentioning the prior convictions during argument. Held: Reversed. The fact that the first jury was unable to reach a verdict on the murder charge should not be an opportunity to retry the case in a new posture, giving the jury the false impression that, absent the defendant’s conviction for murder, his actions relative to the death of the bicyclist would go unpunished. The court’s instruction to the jury that defendant had been convicted of “two of the three counts charged” left it to speculate as to the nature of those convictions, which, for all they knew, could be relatively minor offenses. The jury was instructed on excusable homicide and murder, but no intermediate level of culpability. The jury was not provided with essential contextual data it needed to determine Johnson’s mental state and was therefore encouraged to consider punishment rather than focus on defendant’s level of culpability. The error was prejudicial as the evidence of malice, while substantial, was largely circumstantial.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E063172.PDF