Brief Bank # B-779 (Re: FORECITE F 4.20 n4 [Error To Give CJ 4.20 In Specific Intent Crime])
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
B. The Instructional Error.
1. The Court Erred By Instructing the Jury, Over Defense Objection, Pursuant to CALJIC 4.20 That “The Law Provides That No Act Committed by a Person While in a State of Voluntary Intoxication Is less Criminal by Reason of His Having Been in Such Condition,” and by Failing to Advise the Jury that the Instruction Given to Them Pursuant to CALJIC 4.21 Relating Evidence of Intoxication to Proof of Specific Intent States an Exception to this Rule.
It is settled that a court errs in giving CALJIC 4.20, and, in particular, the first sentence of this instruction (“The law provides that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition”), when any of the charged crimes involve a specific intent. (People v. Rivera (1984) 162 Cal.App.3d 141, 145-146; People v. McCoy (1984) 150 Cal.App.3d 705, 710.) This rule of law goes back to People v. Ford (1964) 60 Cal.2d 772, 796-797, where the supreme court found error in a murder case where the trial court instructed the jury that “no act is ‘less criminal’ by reason of being committed while the defendant is in a state of voluntary intoxication and that a person in such a condition is not permitted to use his own vice as a shelter against ‘the normal, legal consequences’ of his conduct.”
“[T]he giving of such an instruction ‘could well leave a jury in a state of confusion or even with the impression that as a matter of law a defendant’s voluntary intoxication can have no effect on the criminality of his conduct. The subject instruction is intended to be, and should be used only where the crime charged does not require specific intent.’” (Id., at p. 797, quoting People v. Spencer (1963) 60 Cal.2d 63, 85.)
In Ford, McCoy, and Rivera, the courts held that instructions which in effect told the jury that intoxication could be considered to negate intent or premeditation were insufficient to obviate any error from the giving of the improper instruction about no act being “less criminal” because of intoxication. (See Ford, supra, [instruction that intoxication could be considered in determining degree “negated” by improper instruction]; People v. McCoy, supra, 150 Cal.App.3d at p. 710 [error in reading first sentence of 4.20 where not specifically addressed to non-specific intent crimes to which instruction applicable]; and People v. Rivera, supra, [error to give both CALJIC 4.20 and 4.21 without specifically explaining that the latter states an exception to the former].)
In the instant case, the trial court never qualified the introductory sentence to CALJIC 4.20 in any way, leaving the jury to puzzle out how evidence of intoxication could be considered in determining whether the requisite specific intent or mental state had been proven (RT 496, CALJIC 4.21) or whether defendant’s unconsciousness from voluntary intoxication reduced appellant’s culpability to involuntary manslaughter (RT 500, CALJIC 8.47), when the judge had specifically told them that “. . . no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such a condition.” (RT 495, CALJIC 4.20)
Although the second portion of the CALJIC 4.20 instruction read to the jury by the court referred specifically to involuntary manslaughter (mischaracterizing it as a “charged” crime) (RT 495-496), nothing about the introductory sentence to this instruction suggested in any manner that its all-encompassing terms applied only to the lesser charge of involuntary manslaughter. Thus, the trial court erred under Ford, Rivera, and McCoy by giving CALJIC 4.20, particularly the introductory sentence to that instruction, in a case where the charged crime involved a specific intent.
2. The Court Compounded Its Error by Refusing the Alternative Defense Request to Give the New CALJIC 4.21.1 in Lieu of the Contradictory Language of 4.20 and 4.21.
The trial court further erred by refusing defense counsel’s alternative request to instruct the jury pursuant to CALJIC 4.21.1 instead of 4.20 and 4.21. This instruction, added to CALJIC as a new instruction in 1992, was intended by its drafters to apply in cases involving intoxication evidence in which the charged and/or lesser included offenses on which the jury is instructed include both specific and general intent crimes. [Footnote 1]
In People v. Rivera, supra, the court found error in giving both 4.20 and 4.21 without explaining that the latter instruction states an exception to the former.
“Appellant contends that his conviction must be reversed because the jury was instructed first that they should consider his state of intoxication in determining whether he formed the requisite specific intent for the crime of burglary (CALJIC No. 4.21 (1981 rev.)) and then, in the next sentence, that voluntary intoxication was no defense and would not relieve him of responsibility for the crime (CALJIC No. 4.20 (4th ed. 1979)).
“We agree that CALJIC No. 4.20 should not be given in cases which involve specific intent crimes. [citation] However, whether the giving of the instruction confuses the jury depends upon the manner and context in which it is given.
“Where the court instructs the jury that the general rule is that voluntary intoxication is no defense to a crime and then explains that there is an exception to that general rule which applies to specific intent crimes, there is no danger of confusion. [citations] In this case, however, the jury was not informed that CALJIC No. 4.21 explained an exception to CALJIC No. 4.20. In the absence of that explanation, we think the giving of two such contradictory instructions constitutes error.” (People v. Rivera, supra, 162 Cal.App.3d at pp. 145-146, citations omitted.)
While there is no reference to the decision in Rivera, it seems plain that the drafters of CALJIC added 4.21.1 precisely to address the concern expressed by the court in Rivera. The Use Notes to both 4.20 and 4.21 indicate that where both general and specific intent crimes are present, 4.21.1 should be given. (CALJIC, 5th Ed., Jan. 1995 Supp., Use Notes to CALJIC 4.20 and 4.21, pp. 60-61.) The court in People v. Aguirre (1995) 31 Cal.App.4th 391, 401, which upheld the propriety of CALJIC 4.21.1 against a series of challenges, pointed out that the first two sentences of 4.20 and 4.21, which were based on instructions criticized in People v. Ford, supra, contradicted each other—with CALJIC 4.20 telling the jury that intoxication is not a defense to crime, and 4.21.1 advising the jury that intoxication could negate the specific intent element of a given crime, and with neither explaining that the latter rule is an exception to the former.
“But CALJIC No. 4.21.1 does not have this problem. It states a general rule, states that the general rule is in fact a general rule, states that there is an exception to the general rule, and then states what that exception is. The confusion inherent in the Ford instructions is simply not present in CALJIC No. 4.21.1.” (People v. Aguirre, supra, 31 Cal.App.4th at p. 401.)
Another court has recently commented on this same benefit of the revised CALJIC 4.21.1, noting that it, unlike 4.20 and 4.21, “. . . contrasts specific intent crimes with general intent crimes by noting that voluntary intoxication can be considered regarding the former.” (People v. Cameron (1994) 30 Cal.App.4th 591, 599, fn. 2.)
It is thus clear that CALJIC 4.21.1 was drafted and intended to be used in situations like the instant case, where the charged crimes and/or lessers thereto involve both specific and general criminal intent. Thus, the trial court erred by stubbornly insisting on giving CALJIC 4.20 and 4.21 together, with their inconsistent, misleading, and contradictory terms, rather than the defense-requested CALJIC 4.21.1, which was specifically tailored for the situation before the court.
C. The Error Requires Reversal.
1. Standard of Review.
As with the error in failing to define unconsciousness, the preliminary question here is whether the Chapman or Watson standard applies, i.e., whether the giving of the conflicting and inconsistent instructions on intoxication in CALJIC 4.20 and 4.21 is federal constitutional error, or only state law error. Most of the cases construing this type of error have applied Watson analysis. (See, e.g., People v. Hood (1969) 1 Cal.3d 444, 452; People v. Rivera, supra, 162 Cal.App.3d at p. 146.) The most recent case to consider erroneous instruction under CALJIC 4.20 reversed, assuming arguendo that the Watson test applied. (People v. Cameron, supra, 30 Cal.App.4th at p. 602.)
Appellant contends that the error requires analysis under Chapman because it effectively reduced the prosecution’s burden of proving the intent and mental state elements of murder. In the old days of “diminished capacity,” evidence of intoxication was admitted to prove an affirmative defense to crime. Since the post-Proposition 8 demise of diminished capacity, evidence of intoxication can only properly be considered as to whether it negates particular intent or mental state elements of crime. (People v. Saille, supra, 54 Cal.3d at pp. 1117-1119.) Thus, in a situation like the present case, a murder charge involving required elements of malice and/or specific intent to kill, an instruction on intoxication which incorrectly advises the jury that “[t]he law provides that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition . . .” has the effect of reducing the prosecutor’s burden of proving the intent and mental state elements of murder by improperly advising the jury that evidence of appellant’s intoxication at the time of the crime cannot reduce his level of culpability for the charged crime.
It is settled that the Chapman harmless error test should be applied where the prosecution’s burden of proof has been shifted or lessened or where the jury has been misinstructed on an element of the charge without wholly removing consideration of that element from the jury. (See People v. Hernandez (1988) 46 Cal.3d 194, 210; Carella v. California (1989) 491 US 263, 271.) When an instructional error “affects only an aspect of an element” the standard as enunciated in Carella and further refined in Yates v. Evatt, supra, 500 US 391, should be utilized. (See People v. Cummings (1993) 4 Cal.4th 1233, 1316.)
The misinstruction on intoxication is federal constitutional error in another significant sense. Erroneous and contradictory instructions defining the elements of a crime may violate the due process clause. (See People v. Lee (1987) 43 Cal.3d 666, 673-674, and cases cited therein; see also Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942, 949 [misleading and confusing instructions under state law may violate due process where they are “likely to cause an imprecise, arbitrary or insupportable finding of guilt”].) It is settled that CALJIC 4.20 and 4.21, as given in the instant case, are “hopelessly conflicting instructions” (People v. Hood, supra, 1 Cal.3d at pp. 451-452, People v. Cameron 30 Cal.App.4th at p. 600) which could only have confused the jury as to whether they could properly consider intoxication evidence as bearing on the intent and mental state elements of murder.
Where an instructional error relating to an element of an offense violates the federal constitution, the reviewing court should look to the evidence available to the jury, “and presumably considered by the jury in accordance with the instructions,” on the omitted issue to determine if the evidence is so overwhelming as to leave no reasonable doubt. (Yates v. Evatt, supra, 500 U.S. at p. 403.) Under Yates, the reviewing court cannot simply consider the strength of the evidence and determine that the jury would have found the element to exist had it been properly instructed; rather it must determine whether the jury was actually able to consider the evidence under the instructions given. (Ibid.)
Thus the relevant question in the instant case is whether the erroneous instruction that intoxication was no defense to the crimes charged was, beyond a reasonable doubt, “. . . unimportant in relation to everything else the jury considered . . .” on the issue in question [i.e., whether appellant had the requisite specific intent and/or mental state to commit murder], as revealed by the record.” (Yates v. Evatt, supra, 500 U.S. at p. 403, bracketed phrase added.) As put more recently in Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078], the question is “. . . not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Id., at p. ___ [113 S.Ct. at p. 2081].) Such an error can be found harmless “. . . only if other facts necessarily found by the jury are so closely related to the omitted issue that, on this evidence, no rational jury could find one without finding the other.” (People v. Reyes (1992) 2 Cal.App.4th 1598, 1604, construing Yates and Carella.)
2. The Requirement of Reversal.
Applying the test for federal constitutional error to the improper instructions in the instant case must lead to a reversal of appellant’s conviction. First, this is not a case where the evidence on the point in question was “so overwhelming as to leave no reasonable doubt” on the critical question of whether Mr. Doe’s intoxication on the night of the shooting was such as to give rise to a state of unconsciousness. (See prejudice discussions in Parts I-E and II-D of this brief.
Second, there is no basis for assuming that the jury would have applied only the correct instruction under CALJIC 4.21 and ignored the legally erroneous introductory portion of CALJIC 4.20. As the court in Cameron has noted, a proper instruction cannot cure the harm of a “hopelessly conflicting” instruction which, for all intents and purposes, negates the correct instruction. (People v. Cameron, supra, 30 Cal.App.4th at p. 600.) “A bare contradiction creates confusion or unintelligibility and the sequence and complexity of the instructions does not suggest that the correct instruction would have overcome the incorrect instruction.” (Id.) The same holds in the instant case. Here, also as in Cameron, the jury’s request for clarification of a related instruction—in Cameron, the subjective appreciation or risk of death element of implied malice (id.), and in appellant’s trial, the legal definition of “unconscious” (CT 197)—suggests the centrality of this instructional error.
Third, the evidence of intoxication was an essential factor in establishing the unconsciousness defense put forward by appellant as his only defense to murder. The instruction which told them , as a matter of law, that “. . . no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such a condition . . .” was incorrect as applied to the murder charge, entirely contradictory to the defense theory of the case, and tended to undermine the instructions advising the jury that unconsciousness from voluntary intoxication would reduce appellant’s culpability from murder to involuntary manslaughter. Thus it cannot be said that this jury was actually able to consider the intoxication evidence in its proper place, or that the verdict of guilt for second degree murder, a lesser degree than urged by the prosecutor, was “surely unattributable” to the misinstruction under CALJIC 4.20. (Yates v. Evatt, supra, 500 U.S. at p. 403; Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. at p. 2081].) Appellant submits that this court cannot conclude beyond a reasonable doubt that the erroneous instruction that intoxication was no defense to the crimes charged was, “. . . unimportant in relation to everything else the jury considered . . .” on the issue in question (Yates v. Evatt, supra, at p. 403), and reversal is compelled under Chapman.
Reversal is also required under the Watson test. Cases applying this test to determine whether erroneous instruction under CALJIC 4.20 is prejudicial fall into two groups. If the evidence of intoxication is weak or equivocal, the error is found harmless. (See People v. Rivera, supra, 162 Cal.App.3d at p. 146 [error harmless where defense was denial and appellant testified “he was not so intoxicated that he did not know and/or could not remember what he was doing on the night in question”]; People v. Spencer, supra, 60 Cal.2d at pp. 87-88 [erroneous instruction “irrelevant” because evidence of intoxication was “minimal”].) However, where the evidence of intoxication is formidable, or enhances a different defense strongly supported by the evidence, misinstruction under the introductory language in CALJIC 4.20 is found to require reversal. (See People v. Hood, supra, 1 Cal.3d at p. 452 [improper instruction that intoxication is no defense requires reversal where there is “substantial evidence that defendant was drunk” and testimony that he did not remember firing gun or having it in his possession]; People v. Ford, supra, 60 Cal.2d at pp. 797-798 [reversal required because of “ample” evidence of intoxication including blood alcohol over .20 and very erratic driving and defendant appeared unaware he had shot victim]; People v. Cameron, supra, 30 Cal.App.4th at pp. 601-602 [reversal where intoxication evidence supported imperfect self-defense and heat of passion defenses].)
The instant case certainly falls within the latter group. The evidence was undisputed that on the night of the shooting of Ms. Roe, Mr. Doe consumed four bottles of 40 ounce malt liquor, one bottle of 32 ounce malt liquor, two bottles of Cisco, a fortified wine cooler, and a half a bottle of “Mad Dog,” a fortified wine. (RT 63, 66-69, 121; Ex. 2, pp. 3, 5, 9, 21.) Such an “astronomical . . pathological amount of liquor,” defense expert Woods opined, “certainly could send someone into an alcohol blackout.” (RT 445-446) Thus, like Ford and Hood, the evidence of intoxication was very strong, and the defendant’s statements about having no memory of the shooting gave rise to a strong defense based on intoxication. Also, as in Cameron, the intoxication evidence was crucial to the primary defense presented, i.e., unconsciousness. Under the authority of the California cases which have considered this question, appellant submits that it is reasonably probable that a result more favorable to appellant would have occurred had the court either omitted the unnecessary and erroneous instruction under CALJIC 4.20 or properly instructed under CALJIC 4.21.1. (People v. Watson, supra, 46 Cal.2d at p. 826.) Thus, John Doe’s conviction for murder must be reversed.
APPELLANT’S OPENING BRIEF FOOTNOTES
Footnote 1: The new instruction reads as follows:
CALJIC 4.21 (1992 New)
Voluntary Intoxication—Trial With
General and Specific Intent Crimes
“Under the law, it is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of being in such condition.
“Thus in the crime[s] of _______ charged in Count[s] _____, [or the crime of _____ which is lesser thereto,] the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve defendant of responsibility for the crime. This rule applies in this case only to the crime[s] of ____ [and the lesser crime[s] of _____.]
“However, there is an exception to this general rule, namely, where a [specific intent] [or] [mental state] is an essential element of the crime. In such event, you should consider the defendant’s voluntary intoxication in your determination of whether the defendant possessed the required [specific intent] [or] [mental state] at the time of the commission of the alleged crime.
“Thus in the crime[s] of _____, _____. ______ charged in Count[s] ______ [or the lesser crime[s] of ______,] a necessary element is the existence in the mind of the defendant of [a] certain [specific intent[s] [or] [mental state[s] which is included in the definition of the crimes set forth elsewhere in these instructions.
“If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether or not [such] defendant had such [specific intent] [or] [mental state]. If from all of the evidence you have a reasonable doubt whether the defendant had such [specific intent] [or] [mental state], you must find the defendant did not have such [specific intent] [or] [mental state].”
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
APPELLANT’S REPLY BRIEF
III. THE TRIAL COURT GAVE IMPROPER AND MISLEADING INSTRUCTIONS ON INTOXICATION AS A DEFENSE TO CRIME, REQUIRING REVERSAL; THIS ERROR WAS COMPOUNDED BY THE COURT’S REFUSAL TO GIVE CALJIC 4.21.1, AS ALTERNATIVELY REQUESTED BY THE DEFENSE, AND THE COMBINED EFFECT OF THESE ERRORS REQUIRES REVERSAL.
Appellant believes that the points made by respondent with respect to this issue in Part III of its brief are adequately addressed by the discussion in Part III of the opening brief. Two points, however, require some comment.
First, respondent’s contention that the present case is controlled by the holding in People v. McCoy (1984) 150 Cal.App.3d 705 (RB, p. 34-35) is flawed. The rather perfunctory analysis of the court in McCoy on this issue predated by eleven months the more careful and thorough analysis of this species of instructional error by a different division of the same court in People v. Rivera (1984) 162 Cal.App.3d 141. Rivera makes it clear that it is error to give an instruction under CALJIC 4.20 to the effect that intoxication is not a defense to criminality where the charged crime requires a specific intent unless the jury is specifically told that there is an exception to the general rule for crimes involving a specific intent.
“Where the court instructs the jury that the general rule is that voluntary intoxication is no defense to a crime and then explains that there is an exception to that general rule which applies to specific intent crimes, there is no danger of confusion. (Citations.) In this case, however, the jury was not informed that CALJIC No. 4.21 explained an exception to CALJIC No. 4.20. In the absence of that explanation, we think the giving of two such contradictory instructions constitutes error.” (People v. Rivera, supra, at p. 145, citations omitted.)
In the instant case, where both instructions were given to the jury, there was no conceivable way for the jury to understand that the provisions of CALJIC 4.21 stated an exception to the general rule of 4.20 that intoxication is no defense to criminality. By contrast, the defense requested instruction under CALJIC 4.21.1 would have complied with this requirement. Thus, for the reasons discussed herein and in Part III-B of the opening brief, the trial court erred by giving CALJIC 4.20 and 4.21 together, with their inconsistent, misleading, and contradictory terms, and by refusing to give CALJIC 4.21.1, which would have effectively resolved this instructional error.
Lastly, on the subject of prejudice, respondent concludes that the jury’s second degree murder verdict shows that any error in the intoxication instructions was harmless, reasoning that the only basis for such a verdict was a finding that “appellant was too intoxicated to act willfully, deliberately, or premeditatively.” (RB p. 37.)
But respondent’s assumption that this was the basis for the verdict is not a fair one. The facts concerning the shooting incident were few and far between. The forensic evidence shows that the shots were fired a close range while the victim was lying on the bed. (See RT 158-168) The closest Mr. Doe came to giving a description of the background to the shooting was in his comments to the detectives that he became “furious” because “something came over” him. (People’s Exhibit 2, p. 13.) Although respondent’s hypothesis of reduced culpability based on intoxication is one possible explanation of the jury’s second degree murder verdict, it is equally plausible that the jury concluded from the paucity of evidence concerning the shooting and from Mr. Doe’s comments about suddenly becoming “furious” that there was not proof beyond a reasonable doubt that the killing was premeditated and deliberated, but that there was sufficient proof of an intentional killing upon “unconsidered or rash impulse” (People v. Perez (1992) 2 Cal.4th 1117, 1125), the accepted characterization of express malice second degree murder. Or, for that matter, the jury could have concluded there was insufficient evidence of intent to kill, but found that Doe’s act of firing the gun at point blank range constituted implied malice murder under the instructions given to them on that subject. In either alternative scenario, there is no basis for concluding that the jury understood that the instructions given to them pursuant to CALJIC 4.21 stated an exception to the improper instructions they received pursuant to CALJIC 4.20 to the effect that voluntary intoxication is not a defense to crime.
For the reasons discussed herein and in Part III-C of the opening brief, appellant submits that the instructional error requires reversal under both the Chapman and Watson tests.
Parts IV & V
Appellant believes that respondent’s short discussion of the claimed instructional errors in Parts IV and V of the opening briefs is answered adequately by the discussion of these points in the opening brief.
For the reasons discussed herein and in the opening brief, appellant John Doe respectively submits that his conviction for murder must be reversed.
Dated: March 17, 1997
William M. Robinson
Attorney for Appellant