Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 99HF0194 Patrick Donahue, Judge.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
In 2000, a jury found defendant Chrysanthus Mordecai Thomas guilty of voluntary manslaughter and found he personally used a firearm in the commission of that offense. In People v. Thomas (June 26, 2003, G027975) [nonpub. opn.] (ThomasI), we reversed the judgment of conviction on the ground the jury had been instructed on voluntary manslaughter based on a new principle of law established in People v. Blakeley (2000) 23 Cal.4th 82, 85 (Blakeley). Because the Blakeley decision reflected an unforeseen enlargement of the crime of voluntary manslaughter, the Supreme Court held its decision must be applied prospectively only. (Id. at p. 91.) The killing at issue in this case occurred two years before Blakeley, and, thus, the jury should have been instructed on pre-Blakeley law, as conceded by the Attorney General on appeal. (Thomas I, supra, G027975.)
Defendant was retried and again found guilty of voluntary manslaughter, following a jury trial. He contends the judgment of conviction must be reversed because (1) the trial court failed to apply the “law of the case” established in Thomas I, by denying defendant’s request for an involuntary manslaughter instruction; (2) the trial court erred by permitting the prosecution to amend the information prior to retrial; (3) the trial court erred by failing to instruct the jury on involuntary manslaughter as a lesser included offense of voluntary manslaughter; and (4) defendant’s due process rights were violated by the trial court’s vindictive refusal to instruct on involuntary manslaughter and by the prosecution’s vindictiveness in amending the information before retrial.
We affirm. First, in Thomas I, this court reversed defendant’s original judgment of conviction on the sole ground the jury had been improperly instructed on voluntary manslaughter. Thomas I did not comment on whether the jury should be instructed on the offense of involuntary manslaughter during the retrial, much less hold that such an instruction must be given. Second, the record shows the prosecution amended the information to accurately reflect that voluntary manslaughter was the greatest offense defendant could be convicted of following retrial. Defendant’s substantial rights were not prejudiced as a result of that amendment, within the meaning of Penal Code section 1009. (All further statutory references are to the Penal Code.) Third, involuntary manslaughter is not a lesser included offense of voluntary manslaughter; the trial court did not err by refusing to instruct the jury on involuntary manslaughter. Finally, the record is devoid of any evidence suggesting judicial or prosecutorial vindictiveness against defendant.
SUMMARY OF FACTS
In the afternoon of December 16, 1998, 24 year old Amir Zekria and his girlfriend Negah Gheysar sat in Zekria’s car outside the apartment complex where Zekria lived. Zekria talked with two friends who were in a car next to his car. Defendant, who was 25 years old at the time, drove by. Defendant stopped, backed up his car, and started talking with Zekria; defendant and Zekria started yelling at each other. They got out of their cars about the same time and resumed arguing for about three minutes. Defendant reached into his car through a window and pulled out a gun; he pointed the gun at Zekria. At some point, defendant said to Zekria, “I don’t want to fucking hurt you, man.”
Defendant fired a shot which struck the ground near Zekria. Zekria said something to the effect of “What the hell? What are you doing? What is going on?” Zekria took off his shirt and checked himself to see if he had been shot. Defendant fired a second shot striking Zekria in his chest, killing him.
Defendant’s Testimony
Defendant testified he met Zekria in 1992; they were friends and hung out together. Zekria and his brother were part of a group which called themselves the “Playboys.” Defendant witnessed several fights involving members of the Playboys. Defendant testified, however, he had never seen Zekria in a fight and, as far as he knew, Zekria had never hurt anyone.
Defendant testified that in the afternoon of the shooting, he backed up his car to where Zekria’s car was parked. Defendant and Zekria discussed defendant’s problems with Zekria’s brother. Defendant and Zekria started yelling at each other.
Zekria accused defendant of “jumping on his brother”; defendant denied the accusation. Defendant testified that Zekria repeatedly stated he would “‘fuck’ [defendant] up,” which statement defendant understood to mean Zekria would beat him up but not shoot him. Zekria approached defendant; although Zekria did not touch defendant, defendant pushed him away. Defendant further testified he saw one of Zekria’s friends run to Zekria’s car and pull out a gun. (Shortly after the shooting, defendant told a police officer he had not seen any of Zekria’s friends with a weapon.)
Defendant reached into his car and grabbed his gun. He loaded the gun and yelled at Zekria, “I don’t want to shoot you.” Defendant then fired “a warning shot” which came “real close” to striking Zekria. Zekria’s two friends left with the gun defendant testified he had seen one of them obtain. Zekria did not have a weapon and no other members of the Playboys were present.
Defendant testified Zekria took off his jersey, threw it to the ground, and said, “you didn’t shoot me. I am going to kill you now.” Defendant responded, “I don’t want to shoot you, but I will.” Zekria charged at and lunged toward defendant. Defendant fired the gun a second time and stepped back. Zekria took a couple of steps back and fell to the ground. Zekria said, “help me.” Defendant picked up his gun, got in his car, and drove away.
PROCEDURAL BACKGROUND
Defendant was charged in an information with murder in violation of section 187, subdivision (a). The original information alleged the murder constituted a serious felony within the meaning of section 1192.7, subdivision (c)(1), and defendant had personally discharged a firearm causing death within the meaning of sections 12022.53, subdivision (d) and 12022.5, subdivision (a). The jury found defendant guilty of voluntary manslaughter and found he had personally used a handgun in the commission of that offense within the meaning of section 12022.5, subdivision (a). Defendant was sentenced to a total prison term of 21 years. Defendant appealed from the judgment of conviction, raising many contentions of error.
In Thomas I, we reversed the judgment on the ground the jury had been given an incorrect instruction on voluntary manslaughter. Defendant’s trial counsel had proposed a jury instruction on voluntary manslaughter (which was given to the jury after some modifications by the trial court) that followed Blakely, supra, 23 Cal.4th 82, 92, in which the Supreme Court broadened the scope of that crime and held that its decision constituted “an unforeseeable judicial enlargement of the crime of voluntary manslaughter,” which must not be applied retroactively. Blakely was filed after the charged offense was committed in 1998, but before the trial commenced.
In October 2003, after Thomas I was filed, the prosecution filed a third amended information which charged defendant with committing voluntary manslaughter in violation of section 192, subdivision (a), and alleged the charged offense was a serious felony within the meaning of section 1192.7, subdivision (c)(1) and (8), and defendant personally used a firearm in the commission of that offense within the meaning of section 12022.5, subdivision (a). Defendant waived the reading and advisement of the third amended information; he pleaded not guilty as charged and denied all enhancements.
The jury found defendant guilty of voluntary manslaughter, and found the personal use of a firearm enhancement true. The trial court sentenced defendant to a total prison term of 21 years by imposing the 11 year upper term for voluntary manslaughter and a 10 year consecutive term for the firearm enhancement allegation.
Defendant appealed. Pursuant to defendant’s request, we took judicial notice of the clerk’s transcript and the reporter’s transcript contained in the Thomas I appellate record.
In an opinion filed May 8, 2008, a panel of this court granted defendant’s petition for a writ of habeas corpus to permit the filing of a late notice of appeal to challenge the second judgment of conviction. (In re Thomas (May 8, 2008, G040283) [nonpub opn.].)
DISCUSSION
I.
The Trial Court Was Not Required by This Court’s Opinion in Thomas I to Instruct the Jury on Involuntary Manslaughter at Retrial.
Defendant contends, “[u]nder this court’s prior ruling in Thomas I the trial court was mandated by the law-of-the-case doctrine to instruct on involuntary manslaughter and reversal is therefore required.” We do not need to determine whether defendant forfeited this argument or whether his trial counsel was ineffective for failing to raise this argument, because, as explained post, defendant’s argument is without merit.
A.
Law of the Case Doctrine
In People v. Barragan (2004) 32 Cal.4th 236, 246, the California Supreme Court explained the law of the case doctrine as follows: “Under the law of the case doctrine, when an appellate court ‘“states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case’s] subsequent progress, both in the lower court and upon subsequent appeal....”’ [Citation.] Absent an applicable exception, the doctrine ‘requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.’ [Citation.] As its name suggests, the doctrine applies only to an appellate court’s decision on a question of law; it does not apply to questions of fact. [Citation.]... [¶]... [A]lthough an appellate court’s legal determination constitutes the law of the case, ‘upon a retrial... that law must be applied by the trial court to the evidence presented upon the second trial.’”
B.
Our Holding in Thomas I
We begin our analysis of defendant’s law of the case argument by reviewing the limited scope of our holding in Thomas I. In Thomas I, we reversed the judgment of conviction because the jury was improperly instructed on voluntary manslaughter. We explained our holding as follows: “In Blakeley, supra, 23 Cal.4th 82, 85, the California Supreme Court held voluntary manslaughter is committed ‘when a defendant, acting with conscious disregard for life and the knowledge that the conduct is life endangering, unintentionally but unlawfully kills while having an unreasonable but good faith belief in the need to act in self defense.’ The Supreme Court stated: ‘[W]hen defendant killed [the victim] this court had not yet addressed the issue of whether an unintentional killing in unreasonable self defense is voluntary or involuntary manslaughter. But three decisions by the Courts of Appeal in this state held that such a killing was only involuntary manslaughter [citations]; no case held to the contrary. Thus, our decision today—that one who, acting with conscious disregard for life, unintentionally kills in unreasonable self defense is guilty of voluntary manslaughter rather than the less serious crime of involuntary manslaughter—is an unforeseeable judicial enlargement of the crime of voluntary manslaughter, and thus may not be applied retroactively to defendant.’ [Citation.] The court explained, ‘“A statute ‘“which makes more burdensome the punishment for a crime, after its commission,”’ violates article I, section 9, clause 3, of the United States Constitution as an ex post facto determination of criminal liability [citations], as well as its California counterpart, article I, section 9 of the state Constitution [citation]. Correspondingly, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates in the same manner as an ex post facto law.”’ [Citation.]” (Thomas I, supra, G027975.)
We further explained: “Here, the charged offense occurred on December 16, 1998. The Supreme Court’s Blakeley opinion was filed on June 2, 2000. The jury was given, however, an instruction defining the crime of voluntary manslaughter, which incorporated post Blakeley law, enlarging the scope of voluntary manslaughter. The instruction read: ‘Every person who unlawfully kills another human being without malice aforethought but with an intent to kill or with conscious disregard for life unintentionally kills in unreasonable self defense or who with conscious disregard for life and the knowledge that such conduct endangers the life of another unintentionally kills in a sudden quarrel or heat of passion is guilty of voluntary manslaughter in violation of Penal Code section 192[, subdivision] (a). [¶] There is no malice aforethought if the killing occurred (upon a sudden quarrel or heat of passion) (or) (in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury). [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A human being was killed; [¶] 2. The killing was unlawful; and [¶] 3. The killing was done with the specific intent to kill in the unreasonable belief of self defense [¶] or [¶] unintentionally committed with conscious disregard for life in unreasonable self defense [¶] or [¶] with the specific intent to kill in a sudden quarrel or heat of passion [¶] or [¶] with conscious disregard for life and the knowledge that the conduct endangers the life of another unintentionally kills in a sudden quarrel or heat of passion. [¶] A killing is unlawful, if it was not justifiable. [¶] The phrases conscious disregard for life, actual but unreasonable belief of self defense, sudden quarrel or heat of passion are defined in other instructions.’” (Thomas I, supra, G027975.)
We further concluded that although the instructional error was invited by defendant’s trial counsel, counsel’s representation of defendant in this regard was below the standard of care and the invited error was prejudicial. (Thomas I, supra, G027975.) We observed: “Defendant was convicted of voluntary manslaughter when an instruction based on pre Blakeley law would have permitted the jury to convict him of involuntary manslaughter. The Attorney General correctly concedes, ‘on the present record, it cannot be ruled out that the jury made the improper Blakeley finding that appellant killed Zekria unintentionally (or, more accurately, in conscious disregard of danger) while engaged in unreasonable self defense.’ We conclude it is reasonably probable the result would have been different but for counsel’s error.” (Ibid.)
C.
Thomas I Did Not Hold an Involuntary Manslaughter Instruction Must Be Given During Retrial.
Defendant argues: “Thomas I’s holding that [defendant] was wrongfully denied instructions on involuntary manslaughter became the law of this case upon the issuance of remittitur.... However, at [defendant]’s retrial the trial court failed to follow Thomas I and denied [defendant]’s request for involuntary manslaughter instructions and [defendant] was thereupon again convicted of voluntary manslaughter.”
But as demonstrated by the discussion in Thomas I, quoted ante, that opinion solely addressed the improper retroactive application of Blakeley, supra, 23 Cal.4th 82, 85, in instructing the jury on voluntary manslaughter and reversed the judgment on that issue alone. Indeed, we expressly stated that we reversed the judgment “without reaching defendant’s other contentions of error,” which included an argument the trial court had also failed to properly instruct the jury on involuntary manslaughter. (Thomas I, supra, G027975.) Defendant does not contend the trial court failed to give a proper voluntary manslaughter instruction in light of Thomas I during retrial. As Thomas I did not address whether defendant was entitled to an instruction on involuntary manslaughter in the first trial, much less whether such an instruction must be given during retrial, that opinion did not establish any “law of the case” as to defendant’s entitlement to instructions on involuntary manslaughter.
At retrial, the jury was instructed with a modified version of CALCRIM No. 572 which stated: “The defendant is charged in Count 1 with voluntary manslaughter. [¶] To prove that the defendant is guilty of voluntary manslaughter, the People must prove that: [¶] 1. The defendant committed an act that caused the death of another person; [¶] AND [¶] 2. When the defendant acted, he unlawfully intended to kill someone...;... [¶] AND [¶] 3. He killed without lawful excuse or justification.” The jury was also instructed with a modified version of CALCRIM No. 505 (justifiable homicide: self defense or defense of another), a modified version of CALCRIM No. 3471 (right to self defense: mutual combat or initial aggressor), and CALCRIM No. 3472 (right to self defense: may not be contrived).
Defendant also contends the prejudicial error analysis contained in Thomas I “conclusively established the right... of [defendant] in the subsequent retrial to pre Blakeley instructions on involuntary manslaughter.” Defendant relies on the portion of Thomas I, in which we held that defense counsel’s request for a post Blakeley instruction on voluntary manslaughter not only fell below the standard of reasonableness, but was also prejudicial. We concluded it was “reasonably probable the result would have been different but for counsel’s error” and reversed the judgment. (Thomas I, supra, G027975.)
Our conclusion in Thomas I that it was reasonably probable the jury’s verdict would have been different but for counsel’s error did not establish defendant’s entitlement to an involuntary manslaughter instruction during retrial. Thomas I simply required that in the event of a retrial, any instruction on voluntary manslaughter must reflect the law prior to Blakeley. We find no error.
II.
The Trial Court Did Not Err by Permitting the Prosecution to Amend the Information Prior to Retrial.
Defendant argues the trial court erred by permitting the prosecution’s post Thomas I amendment of the information to reflect voluntary manslaughter as the charged offense because the amendment prejudiced his substantial rights within the meaning of section 1009. Again, we do not address whether defendant forfeited this argument by failing to raise it in the trial court or whether his trial counsel was ineffective for failing to raise it in the trial court because defendant’s argument lacks merit for the reasons discussed post.
Section 1262 provides in part, “[i]f a judgment against the defendant is reversed, such reversal shall be deemed an order for a new trial.” Constitutional protections against double jeopardy affect the scope of retrial. “The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee that a person may not be placed twice ‘in jeopardy’ for the ‘same offense.’” (People v. Seel (2004) 34 Cal.4th 535, 541 542.) “[B]ecause greater and lesser included offenses constitute the ‘same offense’ for double jeopardy purposes [citation], ‘a conviction of a lesser included offense bars subsequent prosecution of the greater offense. [Citations.]’” (Id. at p. 542.)
In In re McCartney (1966) 64 Cal.2d 830, 831 832, the California Supreme Court applied these legal principles in the following discussion: “Petitioner’s conviction of second degree murder at her first trial was an acquittal of first degree murder, and her conviction of manslaughter at her second trial was an acquittal of second degree murder. [Citation.] An indictment or information charging murder, however, also charges all lesser offenses necessarily included in the crime of murder, including voluntary and involuntary manslaughter. [Citations.] Accordingly, a defendant who has been charged with murder, convicted of manslaughter and had his conviction reversed on appeal may be retried for manslaughter on the original indictment or information. [Citations.]” The Supreme Court further stated the “[p]etitioner may be tried under the original information or she may move to have the information amended to reflect the fact that she can now be convicted of no higher offense than manslaughter.” (Id., at p. 832, italics added.)
Section 1009 authorizes the trial court to “order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings.” Section 1009 further provides: “The defendant shall be required to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if the defendant has not yet pleaded and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.” (Italics added.) We review the court’s decision to permit amendment to an information for abuse of discretion. (People v. Miralrio (2008) 167 Cal.App.4th 448, 458.)
Here, defendant was originally charged and tried for murder. The jury found him guilty of the lesser included offense of voluntary manslaughter, and thus acquitted him of the greater offense of murder. Pursuant to the legal authorities discussed ante, following defendant’s successful appeal in Thomas I, the constitutional double jeopardy protections required that defendant be retried for no offense greater than voluntary manslaughter. The trial court permitted amendment of the information to reflect voluntary manslaughter as the greatest offense for which defendant might be convicted on retrial.
Defendant contends he suffered substantial prejudice by the amendment of the information “because the trial court relied upon the amendment in denying [defendant] the right to the benefits of his prior appellate victory in Thomas I where it was determined he was prejudiced by the failure of the trial court to give a proper involuntary manslaughter instruction.” He further contends, “[h]ad the information not been amended, the trial court would have been required to give the involuntary manslaughter instructions.”
Defendant’s argument may be restated as follows: Voluntary manslaughter and involuntary manslaughter are both necessarily included offenses of the originally charged offense of murder. Involuntary manslaughter is not a necessarily included offense of voluntary manslaughter. Following Thomas I, defendant could be tried for no greater offense than voluntary manslaughter for the reasons discussed ante. Because the original information was amended to conform to the scope of retrial, expressly charging defendant with voluntary manslaughter, defendant was no longer be entitled to an instruction on involuntary manslaughter. Had the original information not been amended, defendant would have been entitled to instructions of all lesser included offenses of murder, including involuntary manslaughter, even though murder was not an issue on retrial.
Defendant also argues involuntary manslaughter is a lesser included offense of voluntary manslaughter in this appeal. We address that argument in part III, post.
Defendant does not cite any legal authority, and we have found none, which supports his argument. Regardless of whether the original information was amended prior to retrial, defendant was to be retried for no greater offense than voluntary manslaughter. Defendant’s entitlement to an instruction on involuntary manslaughter should not rest on whether the original information is amended to replace its reference to murder as the charged offense (for which defendant had been acquitted and cannot be retried) with voluntary manslaughter (which was the charged offense for purposes of retrial). In re McCartney, supra, 64 Cal.2d at pages 831 832, shows the amendment of the original information in a case such as this is optional and whether the original information is amended does not affect the proper scope of the issues to be retried on remand.
As discussed in part III post, involuntary manslaughter is not a lesser included offense of voluntary manslaughter. Within its discretion, the prosecution did not choose to separately charge defendant with the lesser related offense of involuntary manslaughter. Thus, the trial court did not err by refusing to instruct the jury on involuntary manslaughter. Consequently, defendant has failed to show his substantial rights were prejudiced within the meaning of section 1009 as a result of the trial court permitting amendment of the information to accurately reflect the offense for which defendant would be retried.
III.
The Trial Court Did Not Err by Denying Defendant’s Request for an Involuntary Manslaughter Instruction Because Involuntary Manslaughter Is Not a Lesser Included Offense of Voluntary Manslaughter.
Defendant contends the trial court erred by denying his request to instruct the jury on involuntary manslaughter as a lesser included offense of voluntary manslaughter. We disagree.
“‘We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, “‘that is, evidence that a reasonable jury could find persuasive’” [citation], which, if accepted, “‘would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser” [citation].’” (People v. Licas (2007) 41 Cal.4th 362, 366.) “‘[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.’” (Ibid.; see People v. Parson (2008) 44 Cal.4th 332, 349 [“An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test)”].)
In People v. Orr (1994) 22 Cal.App.4th 780, 784 785, the appellate court applied the statutory elements test as to voluntary and involuntary manslaughter before the change in the law was established in Blakeley, supra, 23 Cal.4th 82, and concluded, “[w]hile both voluntary and involuntary manslaughter are lesser included offenses of murder, it does not follow that involuntary manslaughter is a lesser included offense of voluntary manslaughter. They are merely siblings who have a common parent.” The appellate court in People v. Orr reasoned as follows: “In summary, in order to convict a person of voluntary manslaughter, the jury must find that the killing was intended and was unlawful in that it was neither justifiable, that is, did not constitute lawful defense of self, others, or property, prevention of a felony, or preservation of the peace [citation]; nor excusable, that is, the killing did not result from a lawful act done by lawful means with ordinary caution and a lawful intent, and did not result from accident and misfortune under very specific circumstances, including that no dangerous weapon was used [citation]. In order to convict a person of involuntary manslaughter, the jury must find the killing was unlawful in that it occurred in the commission of any ordinarily lawful act which inherently involved a high degree of risk of death or great bodily harm and was accomplished in a criminally negligent manner. The definition of unlawful as an element of involuntary manslaughter differs significantly from that of voluntary manslaughter and requires the trier of fact to make substantially different findings. Voluntary manslaughter can be committed without committing involuntary manslaughter, and thus the latter is not a lesser included offense of voluntary manslaughter.” (People v. Orr, supra, at p. 784.)
In People v. Rios (2000) 23 Cal.4th 450, 461, footnote 7, the Supreme Court, citing People v. Lasko (2000) 23 Cal.4th 101 and Blakeley, supra, 23 Cal.4th 82, stated: “[W]e recently stated that specific intent to kill is not a necessary element of voluntary manslaughter. [Citations.] However, we meant only to make clear that voluntary manslaughter, but no lesser offense, is also committed when one kills unlawfully, and with conscious disregard for life.” In People v. Lasko, supra, 23 Cal.4th at page 104, the Supreme Court held a killer commits voluntary manslaughter when, acting with a conscious disregard for life and knowing that the conduct endangers the life of another, he or she unintentionally but unlawfully kills in a sudden quarrel or heat of passion. As discussed ante, in Blakeley, supra, 23 Cal.4th at page 91, the Supreme Court held a defendant is guilty of voluntary manslaughter if he or she unlawfully kills unintentionally but with a conscious disregard for life in unreasonable self defense. Blakeley’s holding applies prospectively only and thus does not apply to this case.
The third amended information’s allegations regarding voluntary manslaughter track the statutory elements of the offense, stating: “COUNT 1: On or about December 16, 1998, CHRYSANTHUS MORDECAI THOMAS, in violation of Section 192(a) of the Penal Code (VOLUNTARY MANSLAUGHTER), a FELONY, did willfully, unlawfully and without malice kill AMIR ZEKRIA, a human being, upon a sudden quarrel and heat of passion.” Thus, involuntary manslaughter was not a lesser included offense of voluntary manslaughter under the accusatory pleading test either.
IV.
The Trial Court’s Refusal to Instruct the Jury on Involuntary Manslaughter Did Not Violate Defendant’s Due Process Rights.
Defendant contends: “In the event this Court rejects [defendant]’s contention that the law of the case doctrine mandates the reversal of his conviction based upon the erroneous denial of involuntary manslaughter instructions, [defendant] submits reversal is nevertheless required because the trial court’s refusal to instruct on the theory of involuntary manslaughter deprived [defendant] of the benefits of his success in the prior appeal, and therefore constituted a denial of his right to a fair trial.” Defendant suggests he was subjected to judicial vindictiveness as evidenced by the court’s refusal to instruct on involuntary manslaughter, and prosecutorial vindictiveness as evidenced by the prosecution’s amendment to the information causing the court’s refusal to instruct on involuntary manslaughter.
Defendant did not raise this issue in the trial court. Even assuming the argument is not forfeited, defendant’s argument is without any support in the record.
The record does not show defendant was in any way punished by either the trial court or the prosecution for pursuing a successful appeal in Thomas I. The prosecution did not try to increase the charges following Thomas I and the trial court did not increase his sentence following retrial. Indeed, defendant was given the same sentence following the retrial and his second conviction for voluntary manslaughter. As discussed ante, the prosecution’s amendment of the information had the effect of causing the information to accurately reflect the greatest offense for which defendant could be convicted on retrial—voluntary manslaughter. We find no error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.