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F 4.30 n1 Unconsciousness: Evidence Justifying Instruction (PC 26).
An instruction on unconsciousness is required upon request if there is a “claim or description of coexistent unconsciousness” — i.e., testimony of the defendant as to lack of recollection and/or expert testimony as to the defendant’s lack of consciousness at the time of the offense. (People v. Wu DEPUBLISHED (91) 235 CA3d 614 [286 CR 868].) [See Opinion Bank # O-117for a copy of the Wu opinion.]
F 4.30 n2 Unconsciousness: Failure To Instruct Upon Unconsciousness As Reversible Error (PC 26).
Even though the jury impliedly finds the defendant conscious by returning a verdict of guilt, if no other instructions have presented that issue to the jury, then the failure to instruct upon unconsciousness when supported by the evidence is reversible error. In the absence of the unconsciousness instruction, the jury is left with essentially the same “unwarranted all — or — nothing choice” noted by the Supreme Court in People v. Wickersham (82) 32 C3d 307, 324 [185 CR 436] and People v. Ramkeesoon (85) 39 C3d 346, 352 [216 CR 455]. [Additional briefing on this issue and the opinion in People v. Lee UNPUBLISHED (F016044) [reversing on this ground] are available to FORECITE subscribers. Ask for Brief Bank # B-554 and Opinion Bank # O-122.]
F 4.30 n3 Unconsciousness As Technical Term Requiring Sua Sponte Definition (PC 26).
In People v. Clark (93) 5 C4th 950, 1020 [22 CR2d 689]), the Supreme Court assumed without deciding that the term “unconscious” has a sufficiently technical, legal meaning to require a sua sponte instruction.
[See Brief Bank # B-780 for additional briefing on this issue.]
Research Notes: See Annotation, Automatism or unconsciousness as defense to criminal charge, 27 ALR4th 1067 and Later Case Service.
F 4.30 n4 Availability Of Unconsciousness When Defendant Was Aware Before And After The Killing (PC 26).
Unconsciousness is available as a defense even though the defendant was aware of what he was doing immediately before and following the killing. (See People v. Wilson (67) 66 C2d 749, 762 [59 CR 156]; see also People v. Moore (70) 5 CA3d 486, 492 [85 CR 194].)
F 4.30 n5 Hit And Run: Unconsciousness As Complete Defense To Duty To Render Aid.
(See FORECITE F 12.70 n3.)
F 4.30 n6 Unconsciousness: Improper To Instruct On Unconsciousness In Terms Of General Criminal Intent.
Criminal responsibility for a killing committed while one is unconscious due to voluntary intoxication is based on neither specific nor general intent. (See generally People v. Graham (69) 71 C2d 303, 316-17 [78 CR 217].) Instead, a defendant’s liability in such circumstances arises from his criminal negligence. Therefore, relating unconsciousness to general criminal intent per CJ 3.30 is error. [See Brief Bank # B-789 and Opinion Bank # O-246 for an opinion finding such error and additional briefing on this issue is.]
F 4.30a
Ingestion Of Prescription Medicine As Involuntary Intoxication
*Modify the 2nd ¶ of CJ 4.30 to provide as follows [added language is capitalized]:
This rule of law applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the head, the involuntary taking of ANY drugs, THE TAKING OF PRESCRIPTION MEDICINE AS PRESCRIBED or the involuntary consumption of intoxicating liquor, or any similar cause.
Points and Authorities
In People v. Garcia DEPUBLISHED (90) 226 CA3d 403 [276 CR 517], the Court of Appeal concluded that intoxication which results from medicine taken as prescribed is considered involuntary intoxication. Accordingly, unconsciousness resulting from such intoxication is a complete defense pursuant to PC 26(4), and, therefore, the defendant has the right to an instruction upon unconsciousness in such a case. The above modification to CJ 4.30 makes it clear to the jury that even though the defendant may have voluntarily ingested the prescription medicine, the defense still applies.
Also note that the defense of involuntary intoxication from the ingestion of prescription medicine applies even though the defendant may also have ingested illegal drugs. (Ibid; see also FORECITE F 4.22a and FORECITE F 4.23a.)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
RESEARCH NOTES: See Annotation, When intoxication deemed involuntary so as to constitute a defense to criminal charge, 73 ALR3d 195 and Later Case Service.
F 4.30b
Unconsciousness: No Limitation Of Cause
* Replace paragraph 2 of CJ 4.30 with the following: [added language is capitalized and underlined, deleted language is between <<>>]:
This rule of law applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the head, <<the involuntary taking of drugs or the involuntary consumption of intoxicating liquor,>> or any <<similar>> OTHER cause EXCEPT VOLUNTARY INTOXICATION.
OR
A person is considered under the law to be unconscious if, as a result of any mental or physical disability, other than voluntary drug or alcohol intoxication, the conduct is not a product of the defendant’s conscious effort or determination.
Points and Authorities
CJ 4.30 and the comments thereto suggest that only unconsciousness caused by the disabilities similar to those listed in CJ 4.30 qualify to negate criminal liability based on unconsciousness. Such a limitation is contrary to federal constitutional principles of due process and trial by jury which require proof beyond a reasonable doubt that the defendant harbored the requisite mental state included in the elements of the charge. The principles which excuse unconsciousness from criminal liability are grounded in the early common law which excused criminal liability for one who had “no memory or understanding” of the act constituting the crime. (Perkins, Criminal Law (3d Ed. 1982) Chapter 8, § 2, p. 951.) While this early law was related to the defense of insanity, nearly every American jurisdiction also recognizes a defense for involuntary conduct. (See Robinson, Criminal Law Defenses, (1984) § 171, pp. 259-60.) The principle of this defense may be stated as follows “An actor is excused for his conduct constituting an offense, if as a result of (1) any mental or physical disability, (2) the conduct is not a product of the actor’s effort or determination.” (Ibid.; see also PC 26(4).)
Accordingly, except in the case of involuntary intoxication which is precluded per PC 22, the disabilities causing unconsciousness should not be limited. It is the fact of the unconsciousness which is critical. If the defendant was unconscious for any reason other than voluntary intoxication, then an element of the charge has not been proven and criminal liability should not be imposed.
Nor does PC 28 provide a basis for excluding unconsciousness caused by mental impairment. While Montana v. Egelhoff (96) 518 US 37 [135 LEd2d 361; 116 SCt 2013] [plurality opinion] held that the states could properly exclude voluntary intoxication as an excuse for criminal liability since voluntary intoxication was not an excuse at common law, the same cannot be said for unconsciousness. (See above.) Hence, to the extent that PC 28 would permit the jury to convict a defendant even though unconscious as a result of mental impairment, PC 28 violates the federal constitutional rights to trial by jury and due process (6th and 14 Amendments); see Rock v. Arkansas (87) 483 US 44 [97 LEd2d 37; 107 SCt 2704]; Chambers v. Mississippi (73) 410 US 284 [35 LEd2d 297; 93 SCt 1038] People v. Bobo (90) 229 CA3d 1417 [3 CR2d 747].)