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F 8.47 n1 Failure To Sua Sponte Instruct On Intoxication Short Of Unconsciousness As Federal Constitutional Violation.
In People v. Saille (91) 54 C3d 1103, 1119 [2 CR2d 364], the court held that FORECITE F 8.47a which instructs on intoxication short of unconsciousness is a “pinpoint” instruction which must be requested. However, the court’s resolution of this issue raises federal constitutional (trial by jury [6th Amendment] and due process [14th Amendment] questions. Saille distinguished People v. Ray (75) 14 C3d 20, 27-28 [120 CR 377], on the basis that no involuntary manslaughter instruction was given in Ray whereas in Saille such an instruction was given. However, this does not eliminate the due process violation stemming from the failure to fully instruct the jury on the elements of involuntary manslaughter. In Saille, even though the involuntary manslaughter instruction was given, the jury was led to believe that involuntary manslaughter could not be predicated upon intoxication short of unconsciousness. Hence, the jury was not fully instructed upon the elements of the lesser included offense in violation of settled federal constitutional principles. (See FORECITE PG VII, “Federalizing the Request.”) Nor did CJ 4.30, which told the jury that a person need not be incapable of movement to be unconscious, cure the error as suggested by the Supreme Court. The fact remained that the involuntary manslaughter instruction allowed the jury to find involuntary manslaughter only upon a finding of unconsciousness. Regardless of the definition utilized in CJ 4.30, the jury was precluded from returning a verdict of involuntary manslaughter unless it concluded that the defendant was legally unconscious.
NOTE: In light of Saille (54 C3d at 1120-21), CALJIC notes that CJ 8.47 “is designed for the alleged unconscious defendant.” The use note goes on to advise that in situations where there is intoxication short of unconsciousness, CJ 4.21 should be used and CJ 8.47 should be appropriately modified. These observations underscore the infirmity of CJ 8.47 and provide added impetus for raising a Federal constitutional challenge in cases where that instruction was given without modification. [See Brief Bank # B-532 for additional briefing on federal due process defects of CJ 8.47.]
Note Regarding Necessity of Definition of Voluntary Manslaughter. In Saille, the jury was given CJ 8.45 which, according to the Saille Court, supplied the necessary definition and specification of the required elements. (54 C3d at 1120-21.) Therefore, any shortcoming of CJ 8.47 was held to be a matter for a pinpoint instruction. Accordingly, in a case where CJ 8.47 is the only instruction given on involuntary manslaughter, the analysis of Saille is not applicable since CJ 8.47 becomes the definitional instruction. Hence, the jury will be bound to abide by the CJ 8.47 definition of involuntary manslaughter as a killing committed while unconscious as the result of intoxication. In such a situation, CJ 8.47 cannot be considered a mere pinpoint instruction and, therefore, even in the absence of a request, the judge would be required, sua sponte, to instruct on the elements of voluntary manslaughter as set forth in CJ 8.45. (See People v. Barton (95) 12 C4th 186, 195-98 [47 CR2d 569].)
[See Brief Bank # B-790 for additional briefing on this issue.]
F 8.47 n2 Killing While Unconscious: Necessity Of Definition Of Unconscious.
CJ 8.47 contains no cross reference to the definition of unconsciousness set forth in CJ 4.30. The definition of unconsciousness should be given in connection with instruction upon CJ 8.47. (See, generally, People v. Tidwell(70) 3 C3d 82, 86 [89 CR 58]; People v. Newton (70) 8 CA3d 359, 373-78 [87 CR 394].)
F 8.47 n3 Involuntary Manslaughter When Defendant Has No Memory Of The Killing.
In People v. Jackson (89) 49 C3d 1170, 1196 [264 CR 852], the court recognized that involuntary manslaughter may be predicated upon evidence that the defendant had no memory of the killing.
F 8.47 n4 Involuntary Manslaughter When Defendant Intentionally Commits An ADW Without Intent To Kill.
Even if the defendant intentionally commits an assault with a deadly weapon, if there was no intent to kill, then instruction upon involuntary manslaughter is required if requested. (People v. Welch (82) 137 CA3d 834, 840-41 [187 CR 511]; see also People v. Rhodes (89) 215 CA3d 470, 474 [263 CR 603] [no sua sponte duty].)
F 8.47 n5 Availability Of Unconsciousness When Defendant Was Aware Before And After The Killing.
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 [762 CR 156]; see also People v. Moore (70) 5 CA3d 486, 492 [85 CR 194].)
F 8.47a
Involuntary Manslaughter: Voluntary Intoxication
Short Of Unconsciousness
(PC 192)
*Change first paragraph of CJ 8.47 to read as follows:
The crime is involuntary manslaughter if the defendant killed another human being but due to voluntary intoxication:
1. The defendant was unconscious; or
2. Even if conscious, the defendant neither intended to kill nor harbored malice.
Points and Authorities
CJ 8.47 informs the jury that when a person voluntarily induces his own intoxication to the point of unconsciousness the jury should return a verdict of involuntary manslaughter. However, this instruction is misleading and incomplete because it does not inform the jury that intoxication short of unconsciousness may also justify a verdict of involuntary manslaughter. In People v. Ray (75) 14 C3d 20, 27-31 [120 CR 377], the Supreme Court reasoned that intoxication short of unconsciousness may cause a defendant to commit a killing without actually forming express malice, implied malice or intent to kill. Such a killing, though lacking the elements of murder and manslaughter, would constitute involuntary manslaughter by operation of PC 22. (Ibid.; see also People v. Webber (91) 228 CA3d 1146, 1160-65 [279 CR 437]; People v. Matta (76) 57 CA3d 472, 482 [129 CR 205] and People v. Roberts (75) 51 CA3d 125, 133 [123 CR 893]; see also California Mandatory Criminal Jury Instruction Handbook (CJER) (2013) § 3.15 [recognizing distinction between pinpoint instruction on voluntary intoxication and court’s sua sponte duty to instruct on involuntary manslaughter as a lesser included offense].)
In People v. Lee (99) 20 C4th 47 [82 CR2d 625] the California Supreme Court held that the trial court is obligated to instruct sua sponte on all theories of involuntary manslaughter presented by the evidence. Hence, because voluntary intoxication short of unconsciousness is a theory of involuntary manslaughter (People v. Ray (75) 14 C3d 20, 27-31 [120 CR 377]), Lee requires sua sponte instruction on this theory either by modifying CJ 8.47 or by supplemental instruction.
[See Brief Bank # B-841 for additional briefing on this issue.]
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).]
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
NOTES
Although People v. Saille (91) 54 C3d 1103, 1121 [2 CR 364] suggested that the defendant must request instructions such as CJ 8.47 which relate intoxication to the mental state required for murder, Saille did not eliminate the trial court’s responsibility to instruct sua sponte upon the lesser included offense of involuntary manslaughter. (See Saille 54 C3d at 1121.) [A copy of the opinion in People v. Hennah UNPUBLISHED (G009734) — which reversed upon this ground — is available to FORECITE subscribers. Ask for Opinion Bank # O-121.] (See also, PG V(A)(12) [discussing court’s duty under People v. Barton (95) 12 C4th 186, 198 [47 CR2d 569] to instruct sua sponte on intoxication-based lesser included offenses].)
F 8.47b
Negation Of Implied Malice
By Intoxication
ALERT: As of 1/1/96, the legislature amended PC 22 to preclude the use of voluntary intoxication to negate implied malice. However, ex post facto and due process principles should require that the amended statute apply only to crimes committed after its effective date. (See e.g., FORECITE F 2.90 n5.) Additionally, the amended statute may be challenged under federal due process and trial by jury principles (6th and 14th Amendments) because it precludes the defendant from disproving an element of the charge. (See FORECITE F 4.21 n4; see also FORECITE PG VII(C)(27) Substantive Federal Constitutional Issues — Ex Post Facto: Statute That Changes The Rules Of Evidence.)
*Add to CJ 8.47:
As set forth in the instructions defining implied malice and concurrence of act and intent, implied malice is shown when the defendant (1) has committed the requisite act[s] and (2) the act[s] [was] [were] accompanied with the requisite mental state. Here the prosecution is relying upon __________ [insert act or acts relied upon by the prosecution] as the requisite act[s]. However, even if you are satisfied beyond a reasonable doubt that the defendant committed the alleged act[s] and that the act[s] [was] [were] [dangerous to human life] [produced a high probability that death would result (see FORECITE F 8.31a)], you may not rely upon any act[s] to find the existence of malice unless the defendant possessed the requisite mental state when the act[s] [was] [were] committed.
Specifically, you may not rely upon an act to find the existence of malice if, as a result of intoxication [and/or mental defect, etc. (see FORECITE F 4.21 n8)] [and/or physical trauma (see FORECITE F 3.32 n1)]: 1. Defendant was unconscious when the act[s] [was] [were] committed; or 2. Even if not unconscious, defendant did not possess the required mental state when the act[s] [was] [were] committed.
If you have a reasonable doubt as to whether the requisite mental state for malice has been proven, you must give the defendant the benefit of that doubt and find [him] [her] guilty of involuntary manslaughter rather than murder.
Points and Authorities
In People v. Whitfield (94) 7 C4th 437, 451 [27 CR2d 858], the Supreme Court held that PC 22 does not preclude the use of intoxication evidence to negate implied malice. The basis for this conclusion is that the element of implied malice which requires that the defendant act with knowledge of the danger to, and in conscious disregard of, human life, is closely akin to specific intent. Thus, read in context, the phrase “when a specific crime is charged” in PC 22 includes murder, even where the prosection relies exclusively upon the theory that malice is implied, rather than expressed. Additionally, this interpretation of the statutory language is consistent with the purpose of PC 22(b) which is to permit evidence of intoxication to reduce the crime to a lower degree, but not to admit such evidence if it would result in total acquittal. Allowing a defendant charged with murder to introduce evidence of voluntary intoxication to demonstrate the absence of malice would not result in an acquittal, but in reduction of the offense to involuntary or vehicular manslaughter. Thus, PC 22 is not intended to preclude consideration of evidence of voluntary intoxication on the issue of implied malice. (See FORECITE F 8.11d; FORECITE F 4.21 n3.)
Nevertheless, the court held that CJ 8.47 was properly refused in Whitfield because it “erroneously implied that, if defendant was unconscious when the collision occurred, he could not be convicted of murder.” Hence, to comport with Whitfield, CJ 8.47 — at least in second degree drunk driving murder cases in which the determination of implied malice does not depend exclusively upon the defendant’s state of mind at the time the accident occurs — should be modified.
It is important to note that even though Whitfield observed that the defendant need not have the requisite mental state at the time of the accident, the statutory requirement that there be a concurrence of act and intent requires proof of a specific act or acts which were committed with the requisite mental state. (PC 20; see also FORECITE F 3.31.5.)
(See also FORECITE F 3.32 n11.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
NOTES
For express malice cases, use FORECITE F 8.47a. For cases involving both express and implied malice, FORECITE F 8.47a and FORECITE F 8.47b should be given or combined.
CALJIC HISTORICAL NOTES:
In response to People v. Whitfield (94) 7 C4th 437 [27 CR2d 858], the CJ Use Note states that CJ 8.47 should not be given in a vehicular murder situation. This Use Note is misleading. The Whitfield Court held that CJ 8.47 was properly refused in that case because it “erroneously implied that, if defendant was unconscious when the collision occurred, he could not be convicted of murder.” (7 C4th at 454.) The rationale of this decision was that the defendant’s mental state should be evaluated at the time he/she made the decision to drive while drunk rather than at the time of the collision.
However, this does not preclude instructing the jury that implied malice may be negated by intoxication, whether or not resulting in unconsciousness, in vehicular murder cases. To the contrary, Whitfield held that PC 22 is not intended to preclude consideration of voluntary intoxication evidence on the issue of implied malice. Hence, rather than simply not giving an instruction on this issue, as stated in the Use Note, CJ 8.47 should be modified to comport with Whitfield. (See also FORECITE F 4.21 n4.)
F 8.47c
Modification When Crime Involves Fetal Victim
*Modify CJ 8.47 in paragraphs which include “human being(s)” as follows:
(See FORECITE F 5.00b.)