California Court of Appeals, Fourth District, Second Division
FOR PARTIAL PUBLICATION[*]]
from the Superior Court of Riverside County, No. BAF1400096,
Michael B. Donner, Judge.
McNeil Morse, under appointment by the Court of Appeal, for
Defendant and Appellant.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Scott C. Taylor and Daniel J. Hilton,
Deputy Attorneys General, for Plaintiff and Respondent.
by Hollenhorst, J., with Ramirez, P. J., and Codrington, J.,
Cal.Rptr.3d 124] HOLLENHORST, J.
convicted defendant and appellant William Donald Johnson of
gross vehicular manslaughter while intoxicated (Pen.
Code, § 191.5, subd. (a); count 2) and
hit and run with injury (Veh. Code, § 20001, subd. (a);
count 3). The jury also found true two enhancement
allegations; defendant fled the scene (Veh. Code, §
20001, subd. (c); count 2) and the collision resulted in a
fatality (Veh. Code, § 20001, subd. (b)(2); count 3).
The jury did not reach a unanimous verdict on the other
charged count, second degree murder (§ 187, subd. (a);
count 1), and the trial court
granted a mistrial with respect to that count. On retrial
with respect to count 1, a new jury found defendant guilty of
second degree murder.
appeal, defendant contends that the trial court erred during
his retrial by not informing the jury that he had been
convicted in the first trial of gross vehicular manslaughter
while intoxicated, and that the error requires reversal of
his second degree murder conviction. We agree that the trial
court's instructions to the jury for defendant's
retrial were erroneous in several respects, and the second
degree murder conviction must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND
December 29, 2013, a vehicle driven by defendant veered into
and across oncoming traffic lanes, striking a bicycle
travelling in the opposite direction in the bicycle lane.
Defendant did not slow or stop after the collision. The
bicyclist died on January 11, 2014, of injuries sustained in
had recently been hospitalized for treatment for addiction to
pain medication, and at the time of the collision on December
29, 2013, was driving home from follow-up outpatient therapy.
He had taken several antianxiety medications, Xanax and
Neurontin, as well as Cymbalta for depression. He also drank
a half-pint bottle of vodka during the drive.
the collision, another motorist saw defendant run a stop
sign, nearly causing another collision, and shortly
thereafter, at a stoplight, observed him to be " hunched
down" in the driver's seat. Defendant's son
observed that defendant appeared " out of it" and
" shaken" when he arrived home on the day of the
accident, and that his vehicle had suffered new damage. After
the accident, a neighbor saw defendant and his family
examining the front end of the car, and then covering the
vehicle with a tarp or car cover. Defendant's daughter
testified that defendant asked her to look for a windshield
repair company located " outside the local area" to
fix his broken windshield. On January 6, 2014, while the
vehicle's [209 Cal.Rptr.3d 125] windshield was being
repaired, a passing law enforcement officer recognized it as
matching the description of the vehicle that had struck a
bicyclist; he ordered the workers to stop, and reported the
vehicle to his supervisor. Responding investigators were able
to match a piece of a broken headlight recovered from the
scene of the collision to defendant's vehicle.
addition to evidence of defendant's actions after the
collision, the prosecution also introduced evidence of
defendant's past experience with the dangers of driving
while intoxicated. In 2006, defendant was injured in a
single-car crash, in which he was the driver and only
occupant of the car.
Defendant was too severely injured to perform field sobriety
tests, but a responding law enforcement officer found him to
smell strongly of alcohol, and a blood test revealed his
blood-alcohol content to be 0.24 percent, three times the
legal limit of 0.08 percent. After the 2013 collision, when
asked by police why he had driven under the influence again
despite the previous serious accident, defendant responded,
" Yeah just horrible decisions. You know."
prosecution also introduced evidence that from fall 2012 to
fall 2013, defendant regularly attended meetings of
Alcoholics Anonymous, in which the topic of driving under the
influence was regularly discussed. Additionally, the parties
stipulated that several medications taken by defendant came
with warnings about alcohol consumption ...