During defendant’s retrial for second degree murder, court prejudicially erred by not instructing the jury that he was convicted of gross vehicular manslaughter and hit and run in his first trial. Opinion on rehearing. While driving under the influence of alcohol, Johnson struck and killed a bicyclist and 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 hung on the charge of second degree murder and a mistrial was declared. After retrial, Johnson was convicted of murder. On appeal, he argued the trial court prejudicially 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. Based on similar events, the court People v. Batchelor (2014) 229 Cal.App.4th 1102, determined 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 victim would go unpunished. Here, the court instructed the jury that defendant had been convicted of “two of the three counts charged,” which, for all the jury knew, could be relatively minor offenses. The jury was instructed on excusable homicide and murder, but no intermediate level of culpability. It was therefore not provided with essential contextual data it needed to determine Johnson’s mental state. Further, it was 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 trial court’s modification of the standard second degree murder instruction was erroneous, also requiring reversal. The trial court modified CALCRIM No. 520 (second degree murder) by including in it the defendant’s failure to perform a legal duty, as follows: “A driver has a legal duty to operate a motor vehicle with care and caution to others at all times. If you conclude that the defendant owed a duty to [the victim], and the defendant failed to perform that duty, his failure to act is the same as doing a negligent or injurious act. If you find the defendant guilty of murder, it is murder of the second-degree.” This instruction was confusing at best, as the question of negligence was irrelevant to whether defendant had implied malice. At worst, the instruction implied that defendant’s failure to drive with adequate care and caution equates to culpability for second degree murder. This erroneous instruction was an independently sufficient basis to reverse defendant’s conviction.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E063172A.PDF