Can a jury overturn a conviction for failing to properly instruct a defendant on the issue of subjective knowledge of his involvement in the accident?

In the typical felony hit-and-run driving case, where there is an actual collision between the defendant's vehicle and that of another, one might [80 Cal.App.3d 134] be able to say after conviction that an omitted instruction on the issue of the defendant's knowledge of his involvement in the accident would be nonprejudicial since that issue would have been resolved adversely to the defendant under a properly given instruction on the issue of the defendant's knowledge of the accident; but this is not such a case. Here, defendant's car did not collide with any other vehicle, and although defendant admittedly knew of the accident, it cannot be said that under the instructions given the jury necessarily resolved adversely to defendant the issue of defendant's subjective knowledge of his involvement in the accident. (See People v. Stewart, supra, 16 Cal.3d 133, 141-142, 127 Cal.Rptr. 117, 544 P.2d 1317.) The instructional omission in question cannot be deemed nonprejudicial. ⁴

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