Filed 12/28/17




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S232218
           v.                        )
                                     )                      Ct.App. 2/5 B259665
MARVIN TRAVON HICKS,                 )
                                     )                      Los Angeles County
           Defendant and Appellant.  )                 Super. Ct. No. MA058121-01
____________________________________)


        In this case, we decide whether during a retrial of a second degree murder
charge, after a previous jury failed to reach a verdict on that charge but convicted
the defendant of gross vehicular manslaughter while intoxicated (along with other
offenses), the new jury should be informed of the specific convictions that resulted
from the previous jury’s deliberations. We conclude that the trial court errs if it
informs the new jury of such specific convictions. The trial court does not err,
however, if pursuant to Penal Code sections 1093 and 1127, it instructs the retrial
jury along the following lines: “Sometimes cases are tried in segments. The only
question in this segment of the proceedings is whether the prosecution has proved
the charge of murder. In deciding this question, you must not let the issue of
punishment enter into your deliberations. 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.” The foregoing instruction,
which need only be given upon request, would prevent the jury from wrongly

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                          SEE DISSENTING OPINION
assuming that an acquittal on the murder charge would result in the defendant
escaping criminal liability altogether, and it would do so without introducing
matters that are extraneous to the retrial.
       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 (Pen. Code, § 187, subd. (a)) (count
1), evading an officer resulting in injury (Veh. Code, § 2800.3, subd. (a)) (count
2), evading an officer resulting in death (Veh. Code, § 2800.3, subd. (b)) (count 3),
gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a))
(count 4), and driving under the influence causing injury (Veh. Code, § 23153,
subd. (a)) (count 5). After a jury trial, defendant was convicted on all counts
except the murder count. The jury deadlocked on the murder count, and the court
declared a mistrial as to that count.
       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,

                                              2
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 car
with her. When the light turned green, Tina entered the intersection, and the last
thing she remembered was a black car coming from the right. She regained
consciousness while in an ambulance on the way to the hospital. Witnesses
described a dramatic collision between defendant’s Toyota and the Lexus, with the
Toyota going 80 to 100 miles per hour.
       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

                                           3
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 (Veh. Code, §§ 23103, 23103.5), at
which time he attended a three-month educational program. In addition, he
admitted a driving under the influence conviction in 2001 (Veh. Code, § 23152,
subd. (b)), at which time he attended an 18-month educational program. As part
of these educational programs, defendant was informed of the dangers of driving
while intoxicated, and he watched graphic videos depicting people who had been
injured or killed by impaired drivers.
       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, the day of the
collision that killed Madison Ruano. Defendant smoked marijuana mixed with
PCP. He then fell asleep, waking at about 3:30 or 4:00 in the afternoon.
Defendant admitted that he next “made a conscious decision to go and retrieve
[his] keys, to go and drive the car.” He also admitted that he knew what could
happen when a person drove while under the influence. He knew that lives might
be lost and that families might be destroyed.
       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

                                          4
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

                                          5
greater offense, or the facts actually alleged in the accusatory pleading, include all
the elements of the lesser offense, such that the greater cannot be committed
without also committing the lesser.” (Birks, at p. 117.) If a lesser offense shares
some common elements with the greater offense, or if it arises out of the same
criminal course of conduct as the greater offense, but it has one or more elements
that are not elements of the greater offense as alleged, then it is a lesser related
offense, not a necessarily included offense. (See id. at pp. 119–120.)
        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 Penal
Code section 1023. (Fields, at pp. 310–311; see People v. Greer (1947) 30 Cal.2d
589.)
        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

                                           6
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 argues, however, that it was unfair to him that the retrial jury
faced what appeared to it to be an all-or-nothing choice between conviction and
complete exoneration. In other words, because the retrial jury was only presented
with the murder charge, and because the trial court declined to inform the jury of
the gross vehicular manslaughter conviction, the retrial jury was led to believe,
defendant argues, that it had to convict him of murder to ensure that he would face
some punishment for his manifestly wrongful actions.
       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


1      “Gross vehicular manslaughter while intoxicated requires proof of elements
that need not be proved when the charge is murder, namely, use of a vehicle and
intoxication. Specifically, [Penal Code] section 191.5 requires proof that the
homicide was committed ‘in the driving of a vehicle’ and that the driving was in
violation of specified Vehicle Code provisions prohibiting driving while
intoxicated.” (People v. Sanchez (2001) 24 Cal.4th 983, 989.)



                                          7
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.
       We reasoned in Birks that granting a defense request for instructions on
uncharged lesser related offenses would interfere with prosecutorial charging
discretion, essentially allowing the defendant, not the prosecutor, to choose which
charges are presented to the jury for decision, thus forcing the prosecution not only
to prove the charged offenses but also to disprove any uncharged lesser related

                                           8
offenses that the defense might propose as an alternative. (Birks, supra, 19
Cal.4th at pp. 113, 129–130.) In other words, Birks makes clear that the goal of
enabling a jury to return the most accurate verdict that the evidence supports does
not require that every possible crime a defendant may have committed be
presented to the jury as an alternative. Rather, a jury need only be instructed on
offenses that the prosecution actually charged either explicitly or implicitly
(because they were necessarily included within explicitly charged offenses).
       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 Penal Code sections 1093 and 1127 authorize a
trial court to instruct the jury on the law that applies to the issue it is deciding, but
the trial court may not, generally speaking, instruct the jury on questions of fact.
Penal Code section 1093, subdivision (f), provides in relevant part: “The judge
may . . . charge the jury, and shall do so on any points of law pertinent to the issue,
if requested by either party; and the judge may . . . declare the law.” Similarly,
Penal Code section 1127 provides in relevant part: “In charging the jury the court
may instruct the jury regarding the law applicable to the facts of the case . . . .
Either party may present to the court any written charge on the law, but not with

                                            9
respect to matters of fact, and request that it be given. If the court thinks it correct
and pertinent, it must be given; if not, it must be refused.” (Italics added.) It is not
clear that the instruction defendant requested is authorized by these provisions.
He requested that the jury be instructed about the fact that a previous jury had
convicted him of gross vehicular manslaughter in connection with evidence before
the jury. Sections 1093 and 1127 do not expressly authorize a trial court, as part
of its power to instruct on the law, to inform the jury of the fact of a previous
conviction, and section 1127 might be read as barring the court from doing so. In
some circumstances, however, a trial court may instruct the jury on an uncontested
fact. (See, e.g., Edmonds v. Wilcox (1918) 178 Cal. 222, 223–224; Moore v.
Pacific Coast Steel Co. (1915) 171 Cal. 489, 491.) We need not decide whether
defendant’s requested instruction is authorized by sections 1093 and 1127, or falls
within the trial court’s inherent authority, because we conclude that the instruction
was unnecessary, and the instruction we approve in its place is an instruction on
the law, and hence expressly authorized by sections 1093 and 1127.
       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

                                           10
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 wrongly assuming that an
acquittal on the murder charge would mean defendant escaped criminal liability
altogether, and it would have done so without unnecessarily confusing the jury or
focusing its attention on extraneous matters.2

2      The dissent says: “[T]here 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
                                                            (footnote continued on next page)


                                          11
        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


(footnote continued from previous page)

defendant escaping criminal liability altogether, nor are you to consider whether a
conviction would result in the defendant receiving excessive punishment.’ ” (Dis.
opn. of Liu, J., post, at p. 4.) The added sentence is, however, unnecessary. The
instruction we approve today already makes the same point, and it does so without
repeatedly focusing on the question of punishment: the very topic the jury is not
to consider.



                                          12
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.
       In People v. Johnson (2016) 6 Cal.App.5th 505 (Johnson), the Court of
Appeal reaffirmed its holding in Batchelor, and it went further. Johnson was
factually similar to both Batchelor and this case — a retrial after a jury hung on
second degree murder but convicted of gross vehicular manslaughter while
intoxicated. But in Johnson, the trial court informed the prospective jurors during
voir dire for the retrial that there had been a previous trial arising from the same
underlying facts, that the defendant had been convicted of “ ‘two of the three
charges brought by the district attorney’ ” (Johnson, at p. 510), and that the jury’s
task would be to “ ‘address the one count that was left unresolved in the first
trial’ ” (ibid.). The Court of Appeal concluded that those comments were
insufficient to dispel the false impression of an all-or-nothing choice between a
murder conviction and a complete exoneration. (Ibid.) The court held that despite
the trial court’s detailed description of the context of the proceeding then before
the jury, and despite the fact that the prosecutor did not mislead the jury about the
effect of an acquittal, the trial court nonetheless erred by not informing the jury of
the previous gross vehicular manslaughter conviction. (Id. at pp. 510–511.) The
court reasoned that “[t]he defense was . . . placed in a substantially weaker
rhetorical position in the retrial,” because counsel could not ask the jury to convict
the defendant of gross vehicular manslaughter instead of murder, and because



                                          13
counsel could not tell the jury that defendant had been so convicted. (Id. at p.
511.)
        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 certain extent an apt one. There, as here,
the concern is that a jury, although instructed not to consider punishment, might
nonetheless have the consequences of its verdict in mind, and it might decide
against returning an NGI verdict because it imagines that the defendant, who has
done a manifestly wrongful act, will go free. The NGI instruction ensures that the
jury does not make that mistake, and thus it ensures a more accurate verdict.

3      Insofar as the reasoning of either People v. Batchelor, supra, 229
Cal.App.4th 1102 or People v. Johnson, supra, 6 Cal.App.5th 505 is inconsistent
with the views expressed herein, we disapprove those decisions.



                                          14
Likewise, the instruction we approve today ensures that retrial juries do not
wrongly assume that they are presented with an all-or-nothing choice between
conviction and complete exoneration, and it finds support in the NGI cases. But
defendant draws too strong a conclusion from the NGI analogy. The instruction
we approve today is adequate to dispel any incorrect assumption that the retrial
jury might make, and therefore there is no need for the trial court to inform the
jury of the specific convictions a defendant has already suffered in connection
with the facts presented at the retrial. To that extent, the analogy defendant draws
to the NGI cases is a false one.
       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.



                                          15
       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 retrial jury, but it is particularly
significant that during the chase preceding the fatal collision, defendant ignored
both red lights and the sirens of pursuing law enforcement officers, and he also
nearly hit several vehicles. Those are events that would tend to put a person on
notice that he or she is driving in a dangerous manner, and there is no reason to
conclude that they did not put defendant on such notice.
       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

                                           16
“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 approached defendant’s vehicle,
they found him alert and oriented, despite signs of intoxication. He was aware that
he had been in a collision, that he was wearing a seatbelt, that he had run a red
light, and that he was not in any pain. That fact that he was aware, immediately
after the collision, that he had run a red light is particularly noteworthy; it strongly
supports the conclusion that defendant acted knowingly and with conscious


4       The dissent argues that defendant lacked the ability to act with intention
because he was hanging his body halfway out of the car window, screaming,
talking to himself, reaching in the air, and seemed oblivious to the presence of law
enforcement officers. (Dis. opn. of Liu, J., post, at p. 5.) The dissent also draws a
distinction between evidence of defendant’s intoxication and evidence of
defendant’s behavior, arguing that his behavior, without reference to its cause, is
relevant to show his mental state. (Id. at p. 6.) The behavior that the dissent
identifies suggests a certain cavalier exuberance, but it does not, in itself, prove
that defendant was unable to act with intention, and in the context of this case, it
can support such an inference only if the dissent’s theory is that it indicates
intoxication. Thus, the dissent’s distinction between intoxication evidence and
behavior evidence does not withstand scrutiny. Defendant did not argue
intoxication as a defense, nor did he argue that his exuberant behavior, irrespective
of his intoxication, indicated an inability to act intentionally. The jury was
instructed not to consider voluntary intoxication as a defense, and the prosecution
highlighted that point during closing argument, without objection. Under those
circumstances, there is simply no reasonable probability that the jury would have
relied on defendant’s behavior and admitted intoxication as a reason to reject a
finding of implied malice.




                                           17
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 (Veh. Code, §§ 23103, 23103.5) and driving under the influence of drugs
or alcohol (Veh. Code, § 23152, subd. (b)), and after both convictions, he had
attended educational programs related to the dangers of driving while intoxicated.
In connection with these programs, defendant had also watched graphic videos
depicting actual traffic collisions caused by impaired drivers. In addition,

5       The dissent attempts to show that the evidence that defendant was alert and
oriented immediately after the collision was equivocal. (Dis. opn. of Liu, J., post,
at pp. 5–6.) It was not. When the emergency medical technician arrived on the
scene, he assessed defendant’s mental state using the Glasgow Coma Scale, which
tests eye, verbal, and motor responses. Defendant had a perfect score, indicating a
“normal level of consciousness.” Next, in accordance with county protocol, a
paramedic assessed whether defendant was “alert and oriented,” meaning that
defendant was asked four questions (his name, location, activity, and a simple
question like, “Who’s the President?”). Defendant was able to answer the
questions correctly, receiving the highest score. And, as noted, defendant knew
that he was wearing a seatbelt, that he had run a red light, and that he was not in
pain. To undermine this evidence, the dissent points out that, 15 minutes later,
when defendant was riding in the ambulance, he claimed not to remember what
had happened and he wanted to know why he was in the ambulance. It was the
technician’s impression at the time that defendant was malingering, but even if
defendant had in fact lost his memory during the intervening 15 minutes, that fact
is irrelevant. What is relevant is that immediately after the collision, defendant
was “alert and oriented” and knew he had run a red light, which strongly suggests
that he knew what he was doing when he was doing it. The dissent also notes that
after the collision, defendant exhibited the typical behavior of someone under the
influence of PCP, including a blank stare and emotional volatility. Again, the
dissent does not seem to appreciate that the jury was instructed not to consider
evidence of voluntary intoxication as a defense.



                                         18
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
collision, defendant knew he had just run a red light. The test for implied malice is
whether a defendant had the required mental state at the time of his or her actions,
which defendant clearly did; it does not matter if he later forgot it all.
       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

                                           19
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 therefore not “reasonably probable”
(Watson, supra, 46 Cal.2d at p. 836) that the jury would have reached a different
verdict if it had been instructed in the manner we approve today.




6      Before closing arguments, the trial court spoke with defense counsel
concerning counsel’s argument. The court said: “[A] passing reference . . . to,
[‘]There may be other charges that they might have proven but they are not
charged here, this is the only one you have to concern yourself with’; I don’t have
an issue with that.” (Italics added.) In other words, the court expressly permitted
defense counsel to tell the jury essentially what the instruction we approve today
would have told the jury, namely, that the prosecution “might have proven” “other
charges” in a separate proceeding, but those other charges “are not charged here,”
and the jurors need not be “concern[ed]” with them. Counsel did not think these
specific points were so important that he needed to convey them to the jury.
Nonetheless, the dissent is now arguing that it was prejudicial error for the trial
court not to have conveyed to the jury essentially the same points.



                                         20
                                  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 article VI, section 6 of the
California Constitution.



                                        21
                       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



                                           1
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 faced an
all-or-nothing choice that the first jury clearly did not face. This significantly
altered the complexion of the case for Hicks from the first trial to the second trial.
By contrast, it is not clear that telling the retrial jury of Hicks’s prior conviction
would have resulted in such a significant change for the prosecution from the first
trial to the second. True, telling the retrial jury of Hicks’s prior conviction would
have conveyed certainty as to whether he would be punished, a certainty not
present in the first trial. But once the first jury had decided that Hicks was guilty
of gross vehicular manslaughter, the first jury — like a retrial jury told of Hicks’s
prior conviction — may have “speculate[d] about why . . . the murder charge
[was] being [pursued], or about the punishment defendant [would] face with or
without an additional murder conviction.” (Maj. opn., ante, at pp. 10–11.)
       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

                                            2
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.
        Today’s opinion mentions Penal Code sections 1093 and 1127 but reaches
no conclusion as to whether they prohibit a trial court from giving the kind of
instruction Hicks requested. (Maj. opn., ante, at pp. 9–10.) It is doubtful these
statutes present any obstacle here; both statutes authorize a trial court to “make
such comment on the evidence . . . as in his or her opinion is necessary for the
proper determination of the case.” (Pen. Code, § 1093, subd. (f); see id., § 1127.)
This language appears broad enough to permit a trial court, in the circumstances

                                            3
here, to inform the jury that the evidence resulted in a prior conviction on a related
offense. The Attorney General does not rely on these statutes, and neither does
today’s opinion.
       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



                                           4
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 traction and
came to a temporary halt. Today’s opinion notes that Hicks acknowledged the
presence of a sheriff’s deputy at that time before speeding away, thereby
suggesting that Hicks was capable of acting with intention. (Maj. opn., ante, at
pp. 16–17.) However, the evidence also indicates that during this stop Hicks was
hanging halfway out of the driver’s window, jerking and flopping around,
screaming and mumbling incomprehensibly, and looking around and reaching out
“like he was trying to grab stuff in the air.” Although several deputies ordered
Hicks to put his hands up, Hicks did not comply. At times, he seemed oblivious to
the deputies’ presence altogether.
       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

                                          5
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.)
       Given the closeness of the evidence, it is not surprising that the first jury
deadlocked on the murder charge. (See In re Richards (2016) 63 Cal.4th 291, 320
(conc. opn. of Liu, J.) [citing cases recognizing that prior hung juries can be
relevant to the determination of prejudice].) Notably, the prosecution did not
present much in the way of new or different evidence at the retrial. Among the six
new witnesses put forward by the prosecution, the Attorney General identifies
only three who purportedly made the case stronger for the prosecution. The first
testified that Hicks was alert and conscious after the collision, but uncontroverted
testimony to that effect had already been given by another witness in the first trial.
The second was a motorcyclist who testified that Hicks had yelled “[y]ou guys are
stupid . . . [g]et out of my way” when he passed him prior to the collision; it is
unclear how that is probative of implied malice. And the third witness provided

                                           6
expert testimony that people under the influence of phencyclidine are capable of
making decisions, although they may be poor ones. But testimony to this effect
had been given by another expert at the first trial. In short, none of the new
evidence was materially different or more probative as to the elements of second
degree murder.
       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.
       On this record, it is reasonably probable that Hicks would have obtained a
more favorable result if the jury had been informed of his prior manslaughter

                                          7
conviction or even if the jury had been given the instruction set forth in today’s
opinion. Accordingly, Hicks’s murder conviction should be vacated.


                                                  LIU, J.




                                          8
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
