THE PEOPLE, Plaintiff and Respondent, v. MARVIN TRAVON HICKS, Defendant and Appellant.
S232218
IN THE SUPREME COURT OF CALIFORNIA
December 28, 2017
Ct.App. 2/5 B259665; Los Angeles County Super. Ct. No. MA058121-01
Here, defense counsel requested a specific instruction informing the retrial jury of defendant‘s gross vehicular manslaughter conviction, and the trial court refused such an instruction, stating that it was “going to preclude any reference to the prior trial, or the prior verdict.” In light of the court‘s broad statement, the defense cannot be faulted for failing to request an instruction like the one we approve today. Therefore, we must consider the question of prejudice. We conclude that the failure of the trial court to give the instruction we approve today was not prejudicial, and we affirm the judgment of the Court of Appeal.
FACTS AND PROCEDURAL BACKGROUND
High on marijuana and phencyclidine (PCP), defendant Marvin Travon Hicks fled police in his black Toyota Camry, running several red lights and reaching speeds of about 100 miles per hour. Defendant eventually plowed into the side of a blue Lexus, killing two-year-old Madison Ruano, and injuring Tina Ruano, Madison‘s mother. The District Attorney of Los Angeles County filed an information charging defendant with murder (
At the retrial of the murder count, evidence tending to show the following facts was presented to the jury. At about 5:00 p.m. on Thursday, December 6, 2012, defendant drove a black Toyota erratically and at very high speeds through the City of Lancaster in Los Angeles County. Sheriff‘s deputies pursued him, lights and sirens activated. At one point, the Toyota ran a red light, lost traction, and came to a halt at the curb. A sheriff‘s deputy approached the vehicle, and defendant gave him a “blank stare,” growled, and then sped away, veering into oncoming traffic, running another red light, and nearly hitting several vehicles.
At the same time, Tina Ruano was approaching a nearby intersection, driving a blue Lexus. Her two-year-old daughter, Madison Ruano, was in the
After the collision, sheriff‘s deputies approached defendant‘s vehicle. Defendant was screaming, laughing, and talking to himself, but he was alert and oriented. He was aware that he had been in a collision, that he was wearing a seatbelt, that he had just run a red light, and that he was not in any pain. Defendant resisted the efforts of the officers to extract him from his vehicle. After defendant was extracted, an ambulance transported him to the hospital, where a phlebotomist drew his blood. Defendant was “[v]ery combative” during the blood draw. His blood tested positive for marijuana and PCP.
Madison Ruano died from multiple injuries sustained during the collision. The first two vertebrae in her neck were fractured, causing her spinal cord to be severed from her brain. Madison‘s mother, Tina Ruano, was also seriously injured.
The prosecution offered the testimony of two expert witnesses concerning the effects of PCP on a user‘s mental state. David Vidal, a retired senior criminalist with the Los Angeles County Sheriff‘s Department, testified that PCP affects a person‘s “ability to process data from multiple sources,” and it disrupts time and distance perception. California Highway Patrol Officer Joshua Wupperfeld testified that people under the influence of PCP are capable of making decisions, but they are more likely to make bad decisions.
The prosecution also read into the record portions of defendant‘s testimony from his first trial. In that testimony, defendant admitted he was the driver of the black Toyota and that he was responsible for the collision. Defendant also admitted a “wet reckless” conviction in 1995 (
Defendant further testified that in 2011 and 2012 he had used PCP about 10 to 15 times. On October 30, 2011, he was hospitalized for a day because of PCP use, and on November 8, 2011, he was arrested for being under the influence of PCP. Defendant also described the events of December 6, 2012,
In addition to this transcribed testimony from defendant‘s first trial, defendant also gave live testimony at his second trial. He said that on the day of the collision, he smoked marijuana mixed with PCP and had a bad reaction to the PCP. He heard loud voices and felt as if he were being “compressed.” He went to sleep and slept until about 4:00 p.m. The bad reaction continued, and defendant decided to drive to his son‘s house. He testified that his next memory was waking up in county jail the following day. He said that he did not remember starting his car, driving, being involved in a collision, being transported in an ambulance, having a blood draw at the hospital, being booked into jail, or being interviewed at the police station. Concerning his general awareness of the dangers of driving while intoxicated, defendant testified that he did not “process everything [he] had learned in the past” or weigh “the good and the bad” when he entered his car to drive to his son‘s house.
Relying on People v. Batchelor (2014) 229 Cal.App.4th 1102 (Batchelor), the defense requested that the second jury be instructed that defendant had previously been convicted of gross vehicular manslaughter in connection with the collision that killed Madison Ruano, thus making clear to the jury that, regardless of its verdict on the murder charge, defendant would be held accountable for his manifestly wrongful conduct. The trial court concluded, however, that Batchelor was distinguishable. It declined to give the requested instruction, and the jury found defendant guilty of second degree murder.
Defendant appealed, and the Court of Appeal affirmed, expressly disagreeing with the holding of Batchelor.
We granted review.
DISCUSSION
This case requires us to revisit the distinction between necessarily included offenses and lesser related offenses, a distinction we discussed in People v. Birks (1998) 19 Cal.4th 108 (Birks). “Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the
In this case, if the first jury had convicted defendant of an offense that was necessarily included within the charge of murder, instead of a lesser related offense to murder, retrial of the murder charge would have been barred. Although a jury‘s inability to reach a verdict is a well-established exception to the double jeopardy bar (see People v. Fields (1996) 13 Cal.4th 289, 299–300 (Fields)), and although there is no implied acquittal when a deadlocked jury convicts on a necessarily included offense (id. at pp. 301–305), retrial of a greater offense after a defendant has been convicted of a necessarily included offense would be tantamount to trying the defendant on the necessarily included offense twice, and a conviction on the greater offense under such circumstances would be tantamount to convicting the defendant on the necessarily included offense twice. Therefore, we held in Fields that if a jury fails to reach a verdict on a charged offense but convicts on a necessarily included offense, and if the conviction is recorded by the court and the jury is discharged, retrial of the greater offense is barred under
Here, however, retrial of the murder charge was permitted because the first jury, unable to agree as to the murder charge, convicted defendant of lesser related offenses, but it did not convict him of any necessarily included offenses. Of these lesser related offenses, the one that was factually closest to the murder charge was gross vehicular manslaughter while intoxicated, but because defendant‘s gross vehicular manslaughter conviction required proof of elements that did not need to be proved to convict defendant of murder,1 the retrial of the murder charge did not constitute a second trial of the gross vehicular manslaughter charge, and the conviction on the murder charge did not constitute a second gross vehicular manslaughter conviction.
Defendant relies on cases in which we have discussed the trial court‘s sua sponte obligation to give instructions on offenses that are necessarily included within a charged offense. We have said that such instructions “encourag[e] the most accurate verdict permitted by the pleadings and the evidence.” (Birks, supra, 19 Cal.4th at p. 112; see People v. Breverman (1998) 19 Cal.4th 142, 161 (Breverman).) Moreover, we have said that a rule requiring such instructions “ensures that the jury will be exposed to the full range of verdict options which . . . are presented in the accusatory pleading itself and are thus closely and openly connected to the case. In this context, the rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither ‘harsher [n]or more lenient than the evidence merits.’ ” (Birks, at p. 119; see Breverman, at p. 155; People v. Barton (1995) 12 Cal.4th 186, 196.) In this connection, we have also emphasized that ” ‘[o]ur courts are not gambling halls but forums for the discovery of truth’ ” (Barton, at p. 196, quoting People v. St. Martin (1970) 1 Cal.3d 524), implying that an all-or-nothing choice encourages a high-risk, high-reward gambler‘s approach to criminal justice.
Defendant argues that these same principles and policies apply here where the context is a retrial after a deadlock on a greater offense and a conviction on lesser related offenses. Defendant contends that informing the retrial jury of his previous gross vehicular manslaughter conviction will ensure that the jury is not misled into believing it faces an all-or-nothing choice between a murder conviction and a complete exoneration. Defendant concedes that the gross vehicular manslaughter conviction is a lesser related offense to murder, whereas all the cases he relies on involved necessarily included offenses. He also concedes that this court held in Birks that trial courts should deny a defense request for instructions on uncharged lesser related offenses. (Birks, supra, 19 Cal.4th at pp. 112–113, 137.) But defendant concludes that as to the latter point, Birks is distinguishable.
Here, defendant acknowledges this court‘s reasoning in Birks, but he argues that in a case like his, involving retrial of a greater offense after a conviction on a lesser related offense, the prosecution in fact charged the lesser related offense, and therefore the concern we had in Birks about interfering with prosecutorial charging discretion is not implicated. In such a case, defendant argues, the controlling principle should be that of obtaining the most accurate verdict supported by the evidence, and therefore the retrial jury should be informed of lesser related offenses that resulted in convictions during previous proceedings. Doing so, defendant argues, would avoid giving the retrial jury the false impression of an all-or-nothing choice.
We are not persuaded by defendant‘s argument.
At the outset, we note that
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. (People v. Nichols (1997) 54 Cal.App.4th 21, 24; People v. Holt (1984) 37 Cal.3d 436, 458 [“A defendant‘s possible punishment is not a proper matter for jury consideration.“]; CALCRIM Nos. 101, 3550 [“You must reach your verdict without any consideration of punishment.“].) But this risk can cut both ways. Defendant is obviously disadvantaged if the retrial jury believes it is faced with an all-or-nothing choice and convicts him of murder rather than have him go unpunished. Conversely, the People are disadvantaged if the jury is told that the defendant has already been convicted of a serious homicide offense and then speculates about why, if that is so, the murder charge is being retried, or about the punishment defendant will face with or without an additional murder conviction. (See People v. Alexander (2010) 49 Cal.4th 846, 920 [” ‘The trial court has the duty . . . “to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.” ’ “]; cf. Fields, supra, 13 Cal.4th at p. 307, fn. 5 [if retrial of a greater offense were permitted after conviction on a necessarily included offense, and if the new jury were told of the former conviction, “there exists the potential for juror confusion and/or speculation“].)
Here, the instruction defendant requested did not even-handedly address the possibility that the jury‘s attention might be diverted from the issue before it — guilt or innocence of the charged offense — to the question of punishment, a question that is not for the jury to decide. Moreover, defendant‘s concern that his retrial jury should not have been given the false impression of an all-or-nothing choice could have been adequately addressed by the instruction set forth at the beginning of this opinion. Specifically, the trial court could have informed the retrial jury that cases are sometimes tried in segments, and it could have clarified the question at issue in the segment then before the jury, admonishing the jurors not to consider punishment or the possibility that defendant might be held criminally responsible in some other segment of the proceedings. Such an instruction would have prevented the retrial jury from
Defendant relies on Batchelor, supra, 229 Cal.App.4th 1102. In Batchelor, as here, a jury convicted the defendant of gross vehicular manslaughter while intoxicated, but it failed to reach a verdict on a charge of murder. As here, the trial court denied the defendant‘s request that the retrial jury be informed of the gross vehicular manslaughter conviction. The prosecutor then implied in argument to the retrial jury that an acquittal would mean the defendant went unpunished. Specifically, the prosecutor said: ” ‘And now is the time that you have to hold this person accountable. Now is the time that you have to send the message that you drink and drive and kill someone, you‘re going to be held accountable. There is only one count in this case that you have to decide on. This is it. Hold him accountable for killing someone.’ ” (Batchelor, at p. 1117, italics added.) In other words, the prosecutor led the jury to believe that convicting the defendant of murder was the only opportunity to hold him accountable for his actions.
The appellate court in Batchelor reversed the defendant‘s murder conviction and remanded for a new trial. The court held that the trial court had erred by instructing the jury in a manner that gave the false impression of an all-or-nothing choice, and the court added that the prosecutor‘s misleading argument had compounded the error. (Batchelor, supra, 229 Cal.App.4th at pp. 1116–1117.) The court also suggested that the best solution on remand was for the trial court to inform the retrial jury that the defendant had previously been convicted of gross vehicular manslaughter. (Id. at p. 1117.) For reasons already discussed, we disagree that a retrial jury should be so informed. The only reason the Batchelor court gave for informing the retrial jury of the previous conviction was its concern that the jury should not be given the false impression of an all-or-nothing choice. (Ibid.) But the instruction we approve today would have been adequate to dispel that false impression, and it would have done so without confusing the retrial jury with extraneous information.
We think the information the trial court gave the prospective jurors in Johnson, informing them that the defendant had previously been convicted of ” ‘two of the three charges’ ” (Johnson, supra, 6 Cal.App.5th at p. 510), was sufficient to dispel the false impression of an all-or-nothing choice, and it avoided any disadvantage to the defendant from being unable to urge a vehicular manslaughter conviction. Therefore, we disagree with the Johnson Court of Appeal that the trial court in that case needed to inform the jury specifically of the previous gross vehicular manslaughter conviction.3
Defendant further argues that a rule requiring the trial court, upon request, to inform a retrial jury of the specifics of previous convictions on lesser related offenses would be analogous to the well-settled rule requiring the trial court, upon request and when relevant, to inform the jury that a verdict of not guilty by reason of insanity (NGI) will not result in the defendant going free. (See People v. Coddington (2000) 23 Cal.4th 529, 625–626; People v. Kelly (1992) 1 Cal.4th 495, 538; People v. Moore (1985) 166 Cal.App.3d 540, 556; CALCRIM No. 3450.) The analogy to NGI cases is to a
Here, the defense requested a specific instruction informing the jury of his gross vehicular manslaughter conviction, and the trial court refused such an instruction, stating that it was “going to preclude any reference to the prior trial, or the prior verdict.” In light of the court‘s broad statement, defendant cannot be faulted for failing to request an instruction like the one we approve today, and therefore, we must consider the question of prejudice.
First, we conclude that the Watson prejudice standard applicable to state law error applies in this context. (People v. Watson (1956) 46 Cal.2d 818, 836.) In a noncapital case, the trial court‘s failure to instruct on necessarily included offenses is reviewed for prejudice under the Watson standard. (See Breverman, supra, 19 Cal.4th 142, 164–178.) Here, defendant is arguing that the trial court failed to instruct on lesser related offenses, and it follows from the logic of our analysis in Breverman that such an error should likewise be reviewed for prejudice under the Watson standard. Accordingly, in evaluating prejudice, the relevant inquiry is whether it is “reasonably probable” defendant would have obtained a more favorable result had the trial court given the instruction we approve today. (Watson, at p. 836.) We conclude that it is not. By defendant‘s own admission, he drove at 80 miles per hour through a red light in a densely populated urban area during the weekday rush hour. Doing so can be likened to shooting a gun into a crowd; it is manifestly an act dangerous to human life. Thus, the only real issue was whether defendant acted intentionally, knowing the danger and consciously disregarding it. (See, e.g., People v. Landry (2016) 2 Cal.5th 52; People v. Swain (1996) 12 Cal.4th 593, 601–603.) We need not reiterate here all the evidence presented to the
Significantly, consistent with CALJIC No. 4.20, the jury here was instructed that defendant‘s voluntary intoxication was not a defense. Likewise, defense counsel did not rely on defendant‘s intoxication, and the prosecution argued to the jury, without objection, that intoxication was not a defense. There is no reason why any of those circumstances would have changed if the trial court had given the jury the instruction we approve today, an instruction that has nothing to do with intoxication evidence. Accordingly, in assessing prejudice, we consider only the evidence and theories actually presented to the jury, and there is no reasonable probability that the jury would have used the fact of defendant‘s voluntary intoxication to conclude that he did not act intentionally, did not know of the danger he was creating by his actions, or did not consciously disregard that danger.
Moreover, defendant‘s admissions and also his actions immediately before and after the fatal collision strongly support the conclusion that he was fully capable of acting intentionally and, in fact, did so. Defendant testified that he “made a conscious decision to go and retrieve [his] keys, to go and drive the car,” and he did so despite a general awareness that lives might be lost if a person drives while intoxicated. Defendant then proceeded to drive in a manner that, although erratic and dangerous, demonstrated clear intentionality. For example, after coming to a temporary halt at the curb, defendant was approached by a sheriff‘s deputy, and he acknowledged the presence of the deputy before speeding away.4 And after the collision, when sheriff‘s deputies
disregard of any danger.5 Defendant also actively resisted the officers who extracted him from his vehicle and the medical personnel who drew his blood, again proving his ability to make decisions (albeit poor ones) and to act with intentionality.
And defendant was also fully informed of the dangers of driving while intoxicated. He had previously suffered convictions for alcohol-related reckless driving (
defendant signed a driver‘s license form, certifying: “If I drive while under the influence of alcohol or drugs or both and as a result, a person is killed, I can be charged with murder.” Defendant also conceded in his testimony that he knew the risks associated with impaired driving. The only evidence he offered that tended to negate implied malice was his testimony that he did not “process everything [he] had learned in the past” or weigh “the good and the bad” when he decided to drive on the day of the collision, and that he had no recollection of events from the time he entered the black Toyota to the time he woke up in jail. But this self-serving testimony stands in contrast to the evidence that immediately after the
Furthermore, there is no indication that the jury was concerned about an all-or-nothing verdict, or that it wondered about other possible offenses defendant might have committed. During deliberations, the jury asked the court for definitions of “conscious disregard and knowledge.” That question indicates that the jury‘s focus was on defendant‘s mental state, the only real factual issue in the case. Thus, nothing suggests that the jury was concerned about anything other than the evidence as it related to the charge it was asked to resolve.
Finally, although defense counsel was not able to point out in argument to the jury that defendant had previously been convicted of gross vehicular manslaughter in connection with the evidence presented at trial, counsel was permitted to argue (and did argue) that defendant was guilty of lesser offenses than murder, and that it was specifically the murder charge that went too far. Thus, counsel told the jury: “There are probably 30 other charges I could think of and I would have nothing to say. I would stand here and say he is absolutely guilty of it. [¶] But murder, ladies and gentlemen, there is a dispute here.” That argument tended to minimize any disadvantage counsel faced as a result of the trial court‘s failure to give the instruction we approve today.6
In summary, we see no basis for finding prejudice. The evidence was overwhelming both as to the objective dangerousness of defendant‘s behavior and as to his mental state. Defendant acted with complete disregard for human life, and he did so in an alert state of mind. He admitted a general awareness that his actions were dangerous. Moreover, he demonstrated, while driving, his ability to make intentional decisions, and his comments immediately after the fatal collision indicated his full awareness of the intentional decisions he had just made, including driving through a red light. It is
CONCLUSION
The judgment of the Court of Appeal is affirmed.
CHIN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
MOORE, J.*
* Associate Justice of the Court of Appeal, Fourth Appellate District, Division Three, assigned by the Chief Justice pursuant to
DISSENTING OPINION BY LIU, J.
The court recognizes that an important concern in this case is to “prevent the [retrial] jury from wrongly assuming that an acquittal on the murder charge would result in the defendant escaping criminal liability altogether.” (Maj. opn., ante, at pp. 1-2.) Yet today‘s opinion holds that the trial court, in addressing this concern, would have erred if it had informed the retrial jury that a previous jury had convicted defendant Marvin Travon Hicks of gross vehicular manslaughter. (Id. at p. 1.) I respectfully disagree. Upon Hicks‘s request, the trial court should have informed the jury that he had already been convicted of gross vehicular manslaughter. Further, the trial court‘s error in instructing the jury was prejudicial in light of the evidence in this case.
I.
In assessing the merits of Hicks‘s requested instruction, today‘s opinion is correct that “[d]efendant is obviously disadvantaged if the retrial jury believes it is faced with an all-or-nothing choice and convicts him of murder rather than have him go unpunished.” (Maj. opn., ante, at p. 10.) But the court further states that “the People are disadvantaged if the jury is told that the defendant has already been convicted of a serious homicide offense and then speculates about why, if that is so, the murder charge is being retried, or about the punishment defendant will face with or without an additional murder conviction.” (Id. at pp. 10–11.) Of course, if the jury had been told of Hicks‘s prior conviction, the prosecution may have been “disadvantaged” compared to a scenario in which the jury had not been told. (Id. at p. 10) But that is not the relevant comparison.
Fairness to the parties means they should have been put, to the extent possible, in the same position at the retrial as at the first trial. Not telling the retrial jury of Hicks‘s prior conviction may have led that jury to believe it
The trial court‘s refusal to give Hicks‘s requested instruction disadvantaged the defense to a greater extent than the court acknowledges. In the first trial, Hicks essentially conceded the elements of gross vehicular manslaughter in an effort to avoid conviction on the murder charge. The prosecution then used Hicks‘s admissions and stipulations to its advantage in the retrial, while Hicks could not. The prosecution opened the retrial by reading back portions of the transcript in Hicks‘s first trial: “His words, not mine. His words . . . . ‘I‘m responsible. I was the driver.’ These are words from Mr. Hicks at a prior proceeding.” Hicks, by contrast, could no longer pursue a strategy of conceding a lesser offense in order to avoid conviction on the greater offense. Instead, defense counsel could only say: “There are probably 30 other charges I could think of and I would have nothing to say. I would stand here and say he is absolutely guilty of it. I could stand here and think of charges involving killing that don‘t rise to the level of murder and I would stand here and say he is absolutely guilty of it. [] But murder, ladies and gentlemen, there is a dispute here.” (In light of this statement, it is untrue that defense counsel “did not think [the possibility of other charges was] so important that he needed to convey them to the jury.” (Maj. opn., ante, at p. 20, fn. 6).) Unlike the prosecution, which enjoyed the advantage of using Hicks‘s prior admissions at the retrial, Hicks suffered the disadvantage of having no means to bring his admissions to bear on his trial strategy, as he did at the first trial.
The instruction Hicks requested will not always be advantageous to a defendant facing a retrial on a greater charge. The instruction may ease the prosecution‘s burden of proof, and it may encourage a jury that is not concerned about “over-punishment” to convict on the greater charge. It is not difficult to imagine why a defendant might opt not to request the instruction. But in cases such as this one, where the defendant concedes elements of a lesser charge at the first trial in order to avoid conviction on a greater charge, the parties’ positions at the retrial will more closely approximate their positions at the first trial if the court gives the instruction than if it does not. Here, the trial court should have given the instruction upon Hicks‘s request.
Instead of permitting an instruction that forthrightly informs the jury of a prior conviction and admonishes the jury to disregard it, today‘s opinion authorizes an instruction that says: “Nor are you to speculate about whether the defendant may have been, or may be, held criminally responsible for his conduct in some other segment of the proceedings.” (Maj. opn., ante, at p. 1.) One might wonder whether telling the jury not to speculate about what “may have” happened or what “may” happen in the future is prone to encourage precisely such speculation. But if we presume the jury can follow that instruction, then there is no reason why the jury could not also follow an instruction that identifies the prior conviction, thereby eliminating speculation, and admonishes the jury to disregard the prior conviction in deciding the defendant‘s guilt or innocence on the current charge.
At the very least, there is no reason why trial courts, in giving the instruction set forth in today‘s opinion, could not add the following sentence: “You are not to assume that an acquittal on the murder charge would result in the defendant escaping criminal liability altogether, nor are you to consider whether a conviction would result in the defendant receiving excessive punishment.” This sentence, the first part of which is taken virtually verbatim from the court‘s opinion (see maj. opn., ante, at pp. 1–2, 11), simply makes explicit what the court says is the intended message of its formulated instruction.
II.
Even assuming that the limited instruction set forth in today‘s opinion was all that the trial court should have given in this case, I disagree with the court‘s conclusion that there is no reasonable probability Hicks would have obtained a more favorable result had the trial court given the instruction.
The evidence of implied malice required for second degree murder is closer in this case than the court suggests. Before the collision, Hicks lost
Today‘s opinion suggests that Hicks was alert and oriented after the collision, and that he was aware he had run a red light. (Maj. opn., ante, at pp. 3, 16–18.) This conclusion is based on the testimony of an emergency medical technician who indicated that Hicks was able to recall his name, location, and the time of day within minutes of the collision. But the same technician also testified that Hicks “didn‘t know what was going on” during the ambulance ride to the hospital and that Hicks kept asking why he was there and what was going on for the entire ride. The technician further testified that Hicks was unable to recount any details of the collision when asked, including whether he had been wearing a seatbelt or had run a red light. Moreover, a sheriff‘s deputy testified that Hicks was unresponsive for up to a minute after the collision and that Hicks had a blank stare on his face and lacerations on his head. According to the deputy, Hicks was “in his own world” and was “looking through” the deputies immediately after the collision, alternating between being angry and smiling, and not seeming to understand he had been in a collision and needed to be taken to a hospital. This evidence casts doubt on whether Hicks had the requisite intent or was sufficiently aware of his behavior and its potential consequences to support an implied malice finding.
The court says this evidence of Hicks‘s behavior can support an inference that he was unable to act with intention “only if the dissent‘s theory is that it indicates intoxication.” (Maj. opn., ante, at p. 17, fn. 4.) I do not see why that is so. Hicks did not argue voluntary intoxication as a defense at trial, and the jury was instructed not to consider voluntary intoxication as a defense. But separate and apart from the fact of Hicks‘s intoxication, both parties presented evidence of Hicks‘s behavior (whatever its cause) around the time of the collision because it is relevant to his mental state. The parties recognize the relevance of such evidence in their briefing, as does today‘s opinion in its reliance on Hicks‘s “actions immediately before and after the fatal collision” in assessing whether he acted intentionally. (Id. at p. 16.)
What was different between the first trial and the second was that the defense could no longer concede elements of gross vehicular manslaughter in the hope that the jury would convict him of that homicide charge and not murder. Defense counsel could only allude in the abstract to “30 other charges” (besides murder) that his client would “absolutely be guilty” of. And the trial judge admonished Hicks before he took the stand, warning him not to mention the prior trial, not to use the word “trial” when referring to his prior testimony, and not to talk about what he was convicted of or the fact that this was a retrial. On the other hand, the prosecutor could and did turn this restriction into an advantage. The prosecutor read back Hicks‘s admission of guilt that he was “responsible.” And after confirming that Hicks believed people should be personally responsible for their actions, the prosecutor asked Hicks: “And you‘re saying to this jury that you should be personally accountable for the crash shown here in [this photograph]?” Hicks could only reply that he was responsible for the crash without explaining that he had been held accountable for it through a homicide conviction. In his closing statement, the prosecutor told the jury: “Remember, I talked to all of you in voir dire about the idea of personal accountability.” He went on to state that each juror had confirmed he or she would be willing to hold a wrongdoer “personally accountable for what they‘ve done.” These statements may have led the jury to believe that only they could hold Hicks accountable for his actions.
LIU, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Hicks
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 243 Cal.App.4th 343
Rehearing Granted
Opinion No. S232218
Date Filed: December 28, 2017
Court: Superior
County: Los Angeles
Judge: Kathleen Blanchard
Counsel:
Nancy Gaynor, under appointment by the Supreme Court, and Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen, Deputy State Solicitor General, Paul M. Roadarmel, Jr., Steven E. Mercer, Stephanie A. Miyoshi and Esther P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Nancy Gaynor
California Appellate Project
520 S. Grand Avenue, 4th Floor
Los Angeles, CA 90071
(213) 243-0300
Esther P. Kim
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2872