Defendant is driving drunk, fails to negotiate a turn, and runs over and kills a six-year old girl. Pretty egregious. He's charged with second degree murder. He wants the jury to be instructed on gross vehicular manslaughter while intoxicated, which is a lesser offense, and of which he's pretty clearly guilty. But the California Supreme Court has said that even though you generally have a right to have the jury instructed on lesser included offenses, gross vehicular manslaughter while intoxicated isn't a lesser included offense of second degree murder because the former requires that you be driving whereas, in other types of cases, you can be convicted of the latter without driving a vehicle. Never mind the fact that, here, there's zero doubt (or dispute) that the defendant was driving, and that's the only way he can be convicted.
Defendant gets convicted at trial, and sentenced to 15 years to life. He reiterates his challenge to the failure to instruct on lesser included offenses, and the Court of Appeal -- not surprisingly -- follows the California's Supreme Court precedent. But adds the following:
"Lagunas argues: “Criminal courts are not supposed to be gambling halls where juries are faced with all or nothing verdicts.” Lagunas claims the prosecution “engineered an all or nothing case by only charging second degree murder, betting that no jury would let appellant walk free after causing the death of an innocent little girl.” We are not taking a position on this oft-raised argument, but we are publishing this opinion to make clear that this argument is more properly directed to the Legislature."
Which is, I guess, theoretically true -- once the California Supreme Court decides something, barring its reconsideration of this issue, the only thing left is to ask the Legislature to change the law.
But I'm fairly sure that the class of people who drive drunk and kill people don't exactly have awesome lobbyists in the California Legislature. Even if they did, I strongly doubt that, regardless of the merits of the argument, many elected officials would be super interested in legislation that might perhaps benefit individuals who drunkenly killed little girls. Which is not exactly what you want as your campaign slogan, and what you're probably hugely worried might be your electoral opponent's campaign slogan against you.
But as a "Talk to the hand" argument, sure, it doctrinally works.
