California’s Fourth District Court of Appeal, Division One, just affirmed the second degree murder conviction of Adam Barooshian. People v. Barooshian (2024) __Cal.App.5th___ (Docket No. D081050). Barooshian was a Marine with a prior DUI conviction who drove the wrong way on a freeway with a high blood-alcohol content and killed a motorcyclist.
Along with other vehicle code offenses, Barooshian was charged with murder [Penal Code § 187, subd. (a)] under the Watson murder theory and vehicular manslaughter with gross negligence while intoxicated [Vehicle Code § 191.5, subd. (a)]. The California Supreme Court held in People v. Watson (1981) 30 Cal.3d 290 that one who kills another while driving under the influence may be charged with second degree murder where the circumstances support a finding of implied malice.
The jury in Barooshian’s first trial convicted him on the gross vehicular manslaughter while intoxicated offense but hung on the murder offense. He was retried on the murder charge and convicted of that offense in the second trial.
The appeal focused on a claim of double jeopardy which the Court correctly rejected based on prior caselaw. However, although Barooshian’s conduct was aggravated and the victim’s death tragic, the reviewing Court was wrong to reject Barooshian’s claim that he was treated unfairly in the second trial. It is very troubling, and perhaps his appellate counsel should have focused on this more, that the Court refused to let the second jury know Barooshian had already been convicted of gross vehicular manslaughter while intoxicated. In the eyes of the jurors, their decision was to either convict him of second degree murder or let him walk out of Court a free man. This was misleading, fundamentally unfair, and a denial of due process.
Paul Burglin has been licensed to practice law in California since 1985. He is Board-Certified in DUI Defense and has tried more than 120 cases to verdict. He co-authors the two-volume treatise California Drunk Driving Law and defends individuals accused of vehicular manslaughter and DUI with injury. You may contact him through his website at www.burglin.com.
