Orlina v. Superior Court

Opinion

RYLAARSDAM, J. We are asked to decide what appears to be an issue of first impression in California: May the state retry a defendant on an uncharged lesser related offense following acquittal of the charged offense and a deadlocked jury on the lesser offense? We conclude that, where the defendant has requested the jury be instructed on the lesser offense, the answer is yes.

Facts

Petitioner Mary Suzanne Orlina, a licensed daycare provider, was indicted for violating Penal Code section 273ab (assault on a child under eight years of age resulting in death; all further statutory references are to the Penal Code). At petitioner’s request, the trial court instructed the jury on the lesser offense of involuntary manslaughter. (§ 192, subd. (b).)

The jury acquitted petitioner of the charged offense, but was deadlocked on the uncharged lesser offense. After declaring a mistrial, the court denied petitioner’s motion to preclude prosecution on the lesser offense and set a new trial. Orlina petitioned for a writ of prohibition or mandate and a stay of the trial. We issued an alternative writ and stayed the trial, and now deny the petition.

Discussion

Section 192, Subdivision (b) Is a Lesser Related Offense of Section 273ab.

Although the trial court and the parties assumed at the time of trial that involuntary manslaughter was a lesser related offense to the charged crime, the district attorney subsequently contended section 192, subdivision (b) is a [261]lesser offense included in the crime defined in section 273ab. “[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the 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. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117 [77 Cal.Rptr.2d 848, 960 P.2d 1073]; see also People v. Lohbauer (1981) 29 Cal.3d 364, 369 [173 Cal.Rptr. 453, 627 P.2d 183].)

Section 273ab provides: “Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in state prison for 25 years to life. . . .” Section 192, subdivision (b) defines involuntary manslaughter as “the unlawful killing of a human being without malice” where it occurs “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. ...”