Orlina

Michael R. Capizzi and Anthony J. Rackaukas, Jr., District Attorneys, Maurice L. Evans, Chief Assistant District Attorney and James J. Mulgrew, Deputy District Attorney, for Real Party in Interest.

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.

Petitioner Mary Suzanne Orlina, a licensed day care 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…