APPELLANT WAS DENIED DUE PROCESS BECAUSE THE TRIAL COURT PROHIBITED HER EXPERT WITNESS FROM TESTIFYING REGARDING THE EFFECT OF ALCOHOL ON APPELLANT’S ABILITY TO HAVE “KNOWLEDGE” OF DANGER TO OTHERS; APPELLANT DID NOT WAIVE INSTRUCTIONAL ERROR ON THIS ISSUE
Appellant contends that the trial court’s order excluding expert testimony regarding appellant’s ability to formulate the mental state of knowledge of danger to others due to her intoxication abridged appellant’s right to present a defense and her right to due process of law. Appellant also contends that the both the federal and state Constitutions prohibit the legislature from restricting the presentation of a defense which negates an element of the charged crime. (People v. Saille (1991) 54 Cal. 3d 1103; People v. Reyes (1997) 52 Cal.App.4th 975; People v. Bobo (1990) 229 Cal.App.3d 1417,1442.) Respondent contends that the decision in Montana v. Egelhoff (1996) 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361, (hereinafter, “Egelhoff”) does not lend support to appellant’s position, and that in any event, appellant’s expert witness was able to tell the jury that appellant’s alcoholism and related intoxication on the day in question had minimized her ability to think on a higher level satisfied her right to present a defense.
A. Montana v. Egelhoff
Respondent provides a summary of the Egelhoff decision to establish that the decision does not support appellant’s contention that her due process right to present a defense was not abridged. (RB 16‑21.) Appellant notes that Egelhoff was referred to in her opening brief in order to demonstrate that, “whether the federal Constitution requires that evidence of intoxication be admitted to negate a mental state required by the charged offense has not been conclusively decided by the United States Supreme Court.” (AOB, p. 22.) This is so because four justices dissented from the majority opinion in two separate opinions. (Egelhoff, supra, 116 S.Ct. 2026, 2032, 2034, 135 L.Ed.2d 379, 386, 390.) However, respondent’s conclusion that the Egelhoff decision in fact supports a finding of constitutionality of section 22 is not supported by a thorough reading of that opinion.
The four justices who signed the plurality opinion concluded that limitation of intoxication evidence does not offend due process because intoxication was not a defense at common law and, hence, exclusion of intoxication evidence does not implicate a fundamental right. However, none of the other five justices agreed with this analysis. (Egelhoff, supra, 135 L.Ed.2d at pp. 368‑370.) The four dissenting justices in its opinion written by Justice O’Connor, argued that exclusion of evidence relevant to the determination of an essential mental element of the charge violates due process. (Egelhoff, supra, 135 L.Ed.2d at pp. 380‑385.) The swing vote (Justice Ginsburg), who concurred only in the judgment, concluded that the Montana statute did not offend due process because it was a substantive rather than an evidentiary statute that permissibly redefined mens rea to eliminate the exculpatory value of voluntary intoxication. (Egelhoff, supra, 135 L.Ed.2d at pp. 376‑378.) In other words, Justice Ginsburg concluded, based in part on a determination that although the Montana state high court may have incorrectly analyzed the statute as an evidentiary exclusion,, which offends due process, the statute was in effect a redefining of the requisite mens rea. (Ibid.)
The four dissenting judges came to the opposite conclusion, after reviewing several of its previous decisions, such as Washington v. Texas (1967) 388 U.S. 14 [state could not prevent defense witnesses who were charged or convicted as coparticipants in the same crime from testifying because such action arbitrarily abridged defendant’s right to call witnesses in his favor]; Chambers v. Mississippi (1973) 410 U.S. 284, 294 [due process guarantees the right of a defendant to “a fair opportunity to defend against the State’s accusations.”] and California v. Trombetta (1984) 467 U.S. 479, 485 [due process requires a fair opportunity to present a defense in a criminal prosecution.]. The four dissenting justices wrote:
These cases, taken together, illuminate a simple principle: Due process demands that a criminal defendant be afforded a fair opportunity to defend against the State’s accusations. Meaningful adversarial testing of the State’s case requires that the defendant not be prevented from raising an effective defense, which must include the right to present relevant, probative evidence. To be sure, the right to present evidence is not limitless; for example, it does not permit the defendant to introduce any and all evidence he believes might work in his favor, [citation], nor does it generally invalidate the operation of testimonial privileges. [Citation] Nevertheless, “an essential component of procedural fairness is an opportunity to be heard. That opportunity would be an empty one, if the State were permitted to exclude competent, reliable evidence” that is essential to the accused’s defense. [Citation] [The section at issue] forestalls the defendant’s ability to raise an effective defense by placing a blanket exclusion of the presentation of a type of evidence that directly negates an element of the crime, and by doing so, it lightens the prosecution’s burden to prove that mental‑state element beyond a reasonable doubt. (Egelhoff, supra, 135 L.Ed.2d at pp. 380‑381.)
As did Justice Souter in his dissenting opinion, (Id., at pp. 387‑388), the four dissenting justices recognized that while, “the state legislature has the authority to identify elements of the offense it wishes to punish, [but] once its laws are written, a defendant has the right ‑‑‑ that the State prove beyond a reasonable doubt every element of an offense charged.” (Id. at p. 381.)
Justice O’Connor’s dissenting opinion, reasoned that the Montana homicide statute at issue, specified that a person commits “deliberate homicide” only if he “purposely or knowingly causes the death of another human being.” (Id. at p. 381) Unless the defendant there acted purposely or knowingly, he is not guilty of the offense of deliberate homicide. The restriction on voluntary intoxication evidence enacted by the Montana legislature provided that such intoxication “may not be taken into consideration in determining the existence of a mental state which is an element of [a criminal] offense.” (Id. at p. 366.) The dissent found that this operated as an evidentiary exclusion, as opposed to a redefining of mens rea, because it prevented a defendant from introducing evidence that might create doubt as to whether or not the mental state element required for conviction existed. (Id. at pp. 381‑382.)
Justice O’Connor reasoned:
Crane noted, ‘In the absence of any valid state justification, exclusion of this kind of exculpatory evidence [circumstances of confession] deprives a defendant of the basic right to have the prosecutor’s case encounter and survive the crucible of meaningful adversarial testing.’ ([Crane v. Kentucky (1986)] 476 US,  at 690‑691, 90 L.Ed.2d 636, 106 S.Ct 2142.) The State here had substantial proof of the defendant’s knowledge or purpose in committing these homicides, and might well have prevailed even had the jury been permitted to consider the defendant’s intoxication. But as in Crane, the prosecution’s case has been insulated from meaningful adversarial testing by the scale‑tipping removal of the necessity to face a critical category of defense evidence. (Id. at p. 382.)
Justice O’Connor’s dissent also took issue with the plurality’s opinion that a fundamental principle of justice had not been violated, reasoning that the court should not “consider only the historical disallowance of intoxication evidence, but must also consider the ‘fundamental principle’ that a defendant has a right to a fair opportunity to put forward his defense.” (Id. at p. 385.)
Respondent’s characterization of Justice Souter’s separate dissenting opinion is not entirely accurate. As noted above, Justice Souter acknowledged that a state may define its crimes as it deems fit, as did the other four dissenters. (Id. at p. 385 [“If the Montana legislature chose to redefine this offense so as to alter the requisite mental‑state element, the due process problem presented in this case would not be at issue.”] & Id. at p. 386.) Justice Souter departed from the other justices in that he found that a state may typically exclude relevant and exculpatory evidence if it presents a valid justification for doing so. (Id. at p. 387.) However, Justice Souter read the Montana State Supreme Court opinion as having rejected the statutory scheme as a redefinition of the mental state required for deliberate homicide, and noted that the State had failed to offer a justification for excluding relevant evidence. Inasmuch as the State had failed to offer a justification for excluding relevant evidence, he found that the Court was unable to discern whether there might be a valid reason to support the statute. (Ibid.) Thus Justice Souter did not find that a state may exclude evidence without offending due process, as respondent suggests, but rather determined that it could limit relevant evidence if it came forward with a valid reason that would presumably pass constitutional muster. (See, e.g. People v. Olivas (1976) 17 Cal.3d 236, 251 [Because the right to personal freedom is a fundamental interest, any measure adversely affecting that right must be viewed with strict scrutiny.]; accord Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16‑17.)
Respondent concludes, without any supporting discussion or legal authority cited, that the statute involved in the present case, section 22, is the state legislature’s attempt to redefine the mens rea required for implied malice second degree murder, rather than an attempt to exclude relevant evidence. (RB 20, 21.) Respondent’s conclusion is not supported by the statute’s history. The statute was enacted as a direct response to limit evidence of voluntary intoxication in light of the state high court’s decision in (People v. Whitfield (1994) 7 Cal.4th 437.) Implied malice murder has its impetus in section 187 and 188, the latter which states, “malice … is implied,. . . when the circumstances attending the killing show an abandoned and malignant heart.” Subsequent case law has interpreted the abandoned and malignant heart provision as existing when a defendant, knowing that his or her conduct endangers life and acting with a conscious disregard of the danger, commits an act the natural consequences of which are dangerous to life. (People v. Roberts (1992.) 2 Cal.4th 271, 317.) The amended statute, which in fact pertains to all mental states, did nothing to redefine the mental state required for an implied malice murder; the prosecution still must prove that the defendant had knowledge that his or her conduct endangered life, and knowing that acted with conscious disregard of that danger. The amendment only serves the purpose of excluding evidence of intoxication in relation to an implied malice murder, which undoubtedly reduces the prosecution’s burden of proof in so far as it’s obligation to prove knowledge.
Respondent simply ignores this point by assuming, without discussion, that section 22 redefines the mens rea for implied malice second degree murder, when in fact no such redefining took place. The elements for implied malice murder have remained as they have always been; a defendant is simply prevented from defending his or herself from the charge by presenting evidence that he or she was unable to have knowledge of the dangerousness of her actions due to intoxication.
It seems likely that respondent has so readily concluded that the statute is merely a redefinition of mens rea, because it is obvious that five justices on the court, albeit dissenting judges, either believe that restrictions on defense evidence generally violate due process except in limited situations. The essential distinguishing factor between Justice Souter and the remaining four dissenters, is that Justice Souter, recognizing the due process concern of excluding defense evidence, would allow such restrictions if the State produced adequate justification for such a restriction. Under either dissent analysis, in the instant case, the government has failed to come forward with any type of valid justification for this evidentiary exclusion or otherwise demonstrate that the legislative restriction should be exempt from the protection of the due process clause. Finally, appellant contends that respondent has failed to suggest any justification for this evidentiary restriction, because the only possible justification, to make it easier to convict intoxicated drivers of murder, is not a constitutionally valid justification. (See, O’Connor dissent, Egelhoff, supra, 135 L.Ed.2d at pp. 383.) Appellant contends that eliminating defenses to reduce the prosecution’s burden of proof does not present adequate justification for the exclusionary effect and attendant due process concerns of this statute, and in fact is the very reason such constitutional concerns arise in the first place.
Respondent also questions whether the second degree murder statute involved in the present case would arouse comparable constitutional concerns since section 22 permits evidence of voluntary intoxication to be admitted on the issue of premeditation or deliberation. (RB 20.) Respondent’s doubt can readily be dissolved by looking to the Montana statute involved in the Egelhoff case, which centered on the inability of a defendant to present evidence of intoxication to negate the elements of “purposely or knowingly causing the death of another human being.” Egelhoff, supra, 135 L.Ed.2d at p. 381.) The element of knowledge bears some resemblance to the element of knowledge involved in an implied malice murder in the instant case. Moreover the crux of the dissenters concern was that the prosecution’s burden of proof was reduced by the inability of the defendant to negate an element of the offense. Certainly, appellant’s inability to negate the knowledge element that is so crucial to an implied malice murder raises the same constitutional concerns. Finally, respondent provides no rational basis for concluding that allowing intoxication to negate premeditation and deliberation, in the context of first degree murder, would eliminate constitutional concerns when eliminating the ability to produce such evidence when defending against implied malice second degree murder. If anything, such differentiation raises equal protection concerns regarding restricting a murder defendant’s ability to defend depending on whether he or she is charged with first or second degree murder.
B. People v. Reyes
Other than the Reyes decision, respondent does not address the other state supreme court and appellate court citations discussed in appellant’s brief which support appellant’s contention that disallowing evidence to negate an element of the offense contravenes the due process right to present a defense. (See, e.g. People v. Visciotti (1992) 2 Cal.4th 1, 56; People v. Saille (1991) 54 Cal.3d 1103 [evidence of intoxication can no longer be used as a defense to a crime but rather can be used to raise a doubt or negate an element of a crime which the prosecution must prove beyond a reasonable doubt]; People v. Bobo, supra, 229 Cal.App.3d at p. 1442 [evidence of intoxication can be proffered in an attempt to raise a doubt on an element of a crime; the legislature cannot deny defendant an opportunity to prove that he or she did not possess a statutorily required mental state]; People v. Reyes (1997) 52 Cal.App.4th 975 [evidence of intoxication is admissible to refute an essential element of the crime and to disallow it is reversible error].)
Respondent erroneously concludes that Reyes has no application to the present case because Reyes involved an appeal from a conviction for receiving stolen property, which respondent characterizes as a specific intent crime. Respondent reiterates that, “Reyes has no application to this situation, where the charge of second degree murder did not involve specific intent.” (RB, p. 25.) Respondent’s conclusion is faulty for two reasons.
First, Reyes held that the crime of receiving stolen property was a specific intent crime within the meaning of section 22 subdivision (a) only as to the element of knowledge. (People Reyes, supra, 52 Cal.App.4th at p. 985) In that case, defendant Reyes sought to introduce the testimony of a psychologist to show he lacked knowledge the property was stolen, an essential element of the crime of receiving stolen property. The trial court, however, disallowed the testimony, finding it went to “diminished capacity,” an abolished defense, accepting the prosecution’s argument that receiving stolen property was a general intent crime for all purposes. What is important to this discussion is that the Reyes court cited the state Supreme Court’s Whitfield decision at length, for the proposition that even if a crime could be classified as a general intent crime, that if certain elements of that crime require a specific mental state, such as knowledge, that that determination is crucial as to whether evidence of voluntary intoxication should be allowed. As was discussed at length in the opening brief, Whitfield involved a determination that second degree murder, though not precisely a specific intent crime, with its “element of implied malice that requires that the defendant act with knowledge of the danger to and in conscious disregard of, human life, is closely akin to Hood’s definition of specific intent.” (People v. Whitfield, supra, 7 Cal.4th at p. 450.)
The Reyes court wrote:
Thus, here, as in People v. Whitfield, supra, 7 Cal.4th 437, 450, the classification of the crime as one of general intent has nothing to do with the required element of knowledge, a specific mental state…. Accordingly, we hold that with regard to the element of knowledge, receiving stolen property is a “specific intent crime,” as that term is used in section 22, subdivision (b), and section 28, subdivision (a).
It is thus apparent that the Reyes court concluded that by analogy, receiving stolen property, with its element of knowledge, was similar to implied malice second degree murder, which did not fall precisely within the definition of a specific intent crime, but which likewise had the requirement of knowledge as an element of the defined offense.
This similarity brings to mind the second problem with respondent’s conclusion that Reyes involves a specific intent crime, while the present case involves a general intent crime, second degree murder. Appellant notes that respondent does not provide legal authority for its conclusion that second degree implied malice murder is a general intent crime. It can be gleaned from the discussion in Whitfield, as well as the Reyes’ analysis that while second degree implied malice murder does not precisely fit the definition of a specific intent crime, that it contains elements of a specific intent crime, inasmuch as the specific mental state of knowledge that one’s actions create a danger to human life is required to be convicted. (See also, People v. Cameron (1994) 30 Cal.App.4th 591 [second degree murder is a specific intent crime.].)
C. Disallowing Appellant To Attack The Element Of Knowledge Effectively Curtailed Her Defense To Implied Malice Murder
Respondent also concludes that since the court’s ruling only curtailed testimony on the issue of knowledge, that appellant was nevertheless able to argue that she did not possess implied malice contemplated by second degree murder. (RB 21.) Respondent contends that this restriction did not restrict appellant’s right to present a defense. (RB 21.) Respondent’s assertion overlooks the reality that a conviction for implied malice murder hinges on a defendant’s knowledge that her actions are dangerous, but nevertheless proceeds with such conduct. (People v. Whitfield, supra, 7 Cal.4th at p. 450.) Knowledge of the dangerousness of one’s act is the key element which distinguishes the murder charge from the vehicular manslaughter charge. “Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence., and involves an element of wantonness which is absent in gross negligence.” (People v. Watson (1981) 30 Cal.3d 290, 300.)
It defies rational thought to suggest that appellant could effectively attack the existence of implied malice when she was prevented from presenting evidence that her intoxication prevented her from having knowledge of the dangerousness of her actions. Moreover, the fact that the jury was instructed that it could not consider such intoxication on those elements in any event eliminates any possibility that she could attack the crucial knowledge element. (RT 263.) Neither Dr. Deutsh’s testimony nor appellant’s closing argument touched on the element of knowledge as it related to appellant’s intoxication. In all significant respects appellant’s expert witness was muzzled as to the key element of appellant’s defense — that she could not have actually had the knowledge to appreciate the dangerousness of her actions by driving her vehicle with her .27 blood alcohol level, and her lack of prior drunk driving experience.
D. The Court’s Failure To Adequately Instruct The Jury Is Error, Which Has Not Been Waived By Appellant
The lack of instruction on this issue, leads to Argument II in appellant’s opening brief, which emphasizes that the jury was incorrectly instructed on the use of intoxication evidence, because the jury was instructed with CALJIC 4.20, rather than CALJIC 4.21, or perhaps more appropriately, CALJIC 4.21.1. Both CALJIC 4.21 and 4.21.1 relate that intoxication may be considered to determine whether the defendant had the required specified intent or mental state. As respondent notes this issue is interrelated to appellant’s contention that the trial court’s exclusion of testimony on the issue of knowledge abridged her due process right to present a defense. Appellant will not reiterate its position on that issue.
However, respondent’s contention that appellant has waived the issue because instruction with CALJIC 4.21 was not requested, or that CALJIC 4.20 was not objected to, is without merit. As has been said, “The People make their oft‑repeated but only occasionally applicable, contention the issue was waived, or alternatively that any error was invited, because defendants failed to object to, or request modification of, the challenged instruction. As appellate courts have explained time and again, merely acceding to an erroneous instruction does not constitute invited error. (See, e.g. People v. Wickersham (1982) 32 Cal.3d 307, 332; People v. Cole (1988) 202 Cal.App.3d 1439, 1446.) Nor must a defendant request amplification nor modification in order to preserve the issue for appeal where, as here, the error consists of a breach of the trial court’s fundamental instructional duty.” (People v. Smith (1992) Cal.App.4th 196, 207, fn. 20.)
In any event, such objection or request would have been futile, given the court’s ruling on the in limine motion in which it found that second degree murder was a general intent crime, and that intoxication was not a defense. (See, e.g., People v. Kitchens (1956) 46 Cal.2d 260, 263 [“an objection would have been futile, and ‘The law neither does nor requires idle acts.’ (Civ. Code, § 3532)”; See also People v. Redmond (1981) 29 Cal.3d 904, 916.)
Accordingly, appellant respectfully requests that her second degree murder conviction be reversed.
Senate Floor, Committee Analysis of SB 121, at 2 (May 23, 1995); see Assembly Committee on Public Safety, Committee Analysis of SB 121, at 4 (July 11, 1995).
 Respondent refers to the implied malice “contemplated by first degree murder.” (RB 21.) Appellant has assumed for purposes of this argument that respondent intended to say second degree murder inasmuch as appellant is not aware of an implied malice theory for a first degree murder. (See, e.g. People v. Castillo (1997) 16 Cal.4th 1009, 1021 [“However, first degree murder cannot be predicated on implied malice.”].)