Return to CALJIC Part 3-4 – Contents
F 4.21 n1 Drunk Driving Murder: Intoxication Applies To All Acts.
Since the jury’s determination of implied malice may focus upon the defendant’s act of drinking and/or the act of driving (see People v. Bennett (91) 54 C3d 1032, 1038 [2 CR2d 8]), there may be confusion among the jurors as to which act or acts the defendant’s intoxication applies per CJ 4.21. In People v. Talamantes (92) 11 CA4th 968, 974-75 [14 CR2d 311], the jury appeared to have just this sort of confusion about the instructions. However, any clarification or amplification of the instructions in this regard must be requested. (Ibid.)
[Research Note: See FORECITE BIBLIO 4.20, et al.]
F 4.21 n2 Does Implied Malice Require Specific Intent?
In People v. Alvarado (91) 232 CA3d 501 [283 CR 479] and People v. Ricardi (90) 221 CA3d 249, 256, 261 [270 CR 425], the courts held that murder is a specific intent crime even when based on implied malice. The Alvarado court stated, “malice may be established by showing the specific intent to commit an act from which malice may be implied. [Citations].” (Alvarado 232 CA3d at 505.)
People v. Whitfield (94) 7 C4th 437, 451 [27 CR2d 858], held that 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 prosecution relies exclusively upon the theory that malice is implied, rather than express. (See FORECITE F 8.47b.)
People v. Whitfield (94) 7 C4th 437, 449-52 [27 CR2d 858], provides a basis for arguing that intoxication may negate any mental element so long as the defendant is held liable for a lesser crime rather than being completely exonerated. (See FORECITE PG IV.) The use note to CJ 8.11 states that Whitfield held that implied malice is not a “specific intent” but that evidence of intoxication may negate the knowledge requirement. (But see People v. Cameron (94) 30 CA4th 591, 599-603 [36 CR2d 656] [implied malice is a “specific intent crime” as that term is used in PC 22(b)]; see also FORECITE F 8.11c.)
However, Whitfield was superseded by legislation effective 1/1/96 to specifically preclude voluntary intoxication as a defense to implied malice.
[Research Note: See FORECITE BIBLIO 4.20, et al.]
F 4.21 n3 May Intoxication Negate Implied Malice?
People v. Ricardi (90) 221 CA3d 249, 256, 261 [270 CR 425] held that because implied malice requires an actual appreciation of a risk, a defendant is entitled to instruction that voluntary intoxication may negate the required malice.
People v. Whitfield (94) 7 C4th 437, 451 [27 CR2d 858], held that PC 22 does not preclude the use of intoxication evidence to negate implied malice. (See FORECITE F 4.21 n2 and F 8.47b.)
However, in 1995 PC § 22 was amended to exclude evidence of voluntary intoxication to negate implied malice. (See People v. Martin (2000) 78 CA4th 1107, 1114-15 [93 CR2d 433].)
(See also FORECITE F 3.32 n11.)
FEDERALIZATION NOTE: Even though Martin rejected a federal constitutional challenge to PC 22 that challenge may still be viable. Montana v. Egelhoff (96) 518 US 37 [135 LEd2d 361; 116 SCt 2013] was a plurality opinion wiht the swing vote, Justice Ginsburg, holding that the Montana statute changed the actual elements of the offense. Therefore, since PC 22 does not eliminate malice as an element of murder, Egelhoff does not preclude the argument that it violates the federal constitution to preclude evidence which negates an element of the charge. (See FORECITE F 4.21 n11.)
[Research Note: See FORECITE BIBLIO 4.20, et al.]
F 4.21 n4 Intoxication Or Mental Impairment: Negation Of Knowledge Element.
PC 22 states that a required specific intent may be negated by intoxication but the statute does not specifically refer to knowledge. However, the defendant’s mental state cannot be “mechanically divide[d] … into knowledge and intent.” (People v. Mendoza (98) 18 C4th 1114, 1131 [77 CR2d 428].) Therefore, “although knowledge ‘may not fall literally within the Hood (People v. Hood (69) 1 C3d 444 [82 CR2d 618]) formulation of specific intent, the element [of aiding and abetting liability] that requires that the defendant act with knowledge of [the perpetrator’s criminal intent] is closely akin to Hood’s definition of specific intent, which requires proof that the defendant acted with a specific and particularly culpable mental state.’ [Citation.]” (Mendoza, 18 C4th at 1131; see also People v. Whitfield (94) 7 C4th 437, 450 [27 CR2d 858]; People v. Reyes (97) 52 CA4th 975 [61 CR2d 39] [evidence of voluntary intoxication or mental disease or defect may be presented per PC 22 and PC 28 to negate knowledge element of receiving stolen property]; but see People v. Atkins (2001) 25 C4th 76, 89 [104 CR2d 738] [evidence of voluntary intoxication does not negate intent required to prove mental state for arson; arson a general intent crime, voluntary intoxication not a defense].)
NOTES:
There is a sua sponte duty to instruct on knowledge when it is an element. (People v. Reynolds (88) 205 CA3d 776, 778-81 [252 CR 637].)
Due Process. See FORECITE F 4.21 n11 [due process may be implicated by disallowing evidence negating an element of the charge].
Knowledge Element Of Drug Charge. In People v. Buckner DEPUBLISHED (91) 233 CA3d 121 [284 CR 378], the court held, based on the 1982 amendment to PC 22, that intoxication may not negate the knowledge element of drug charge. However, the Supreme Court granted review (S022983) and transferred the case to the Court of Appeal with directions to vacate its decision and reconsider it “in light of Stats. 1982, Ch. 893 § 5, p. 3318″ which provides as follows: “The amendments of PC 21, PC 22, and PC 188 are declaratory of existing law.”
The Court of Appeal subsequently issued an unpublished opinion in Buckner rejecting the appellant’s claim “even assuming PC 22 does not bar the giving of an instruction on voluntary intoxication with respect to [drug charges].” Hence, Buckner is no longer on the books and the correct view–that the element of knowledge may be negated by intoxication–remains intact. (See People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364] [right to request instruction pinpointing effect of intoxication on mental element of the charge].)
[RESEARCH NOTE: See FORECITE BIBLIO 4.20, et al.]
F 4.21 n5 Intoxication Instruction Required When Appropriate.
In People v. Ramirez (90) 50 C3d 1158 [270 CR 286], the court held that “although the potential effect of intoxication on an individual’s mental state may well be known to jurors, jurors may not be aware, without an instruction, that while [n]o act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition [PC 22(a)], it is nonetheless legally permissible for jurors to consider a defendant’s voluntary intoxication in determining whether he acted with the specific intent or proscribed mental state required for a particular offense. [PC 22(b).]” (Ramirez 50 C3d at 1179.)
However, such instructions must be requested by the defense. (People v. Saille (91) 54 C3d 1103, 1120-21 [2 CR2d 364].)
[Research Note: See FORECITE BIBLIO 4.20, et al.]
F 4.21 n6 Evidence Must Show Effect Of Intoxication.
People v. Ramirez (90) 50 C3d 1158 [270 CR 286], recognized that there is no right to the intoxication instruction simply because the defendant had been drinking and may have had a relatively high blood alcohol level (e.g., .14% in Ramirez). Instead, the evidence must also show that the defendant’s drinking “had affected his mental state in a manner that might negate the specific intent or mental state required for first degree murder.” (Id. at p. 1161; see also People v. Marshall (96) 13 C4th 799, 848 [55 CR2d 347].)
[Research Note: See FORECITE BIBLIO 4.20, et al.]
F 4.21 n7 Whether Expert Testimony Is Required For Drug Intoxication.
People v. Cox (90) 221 CA3d 980, 989 recognized a distinction between alcohol and drug intoxication holding that the former is within the ken of the average juror the latter is not. Therefore, according to Cox, where there is no specific evidence as to the effect of the drug upon the defendant’s mental processes the court may not be obligated to instruct upon intoxication. (Ibid.)
However, People v. Yeoman (2003) 31 C4th 93, 162 reflects a different view: “The effect of drugs, while certainly a proper subject of expert testimony, has become a subject of common knowledge among laypersons.” Hence, it should not be always be necessary to present expert testimony in order to obtain a pinpoint instruction on drug intoxication.
Nevertheless, to assure instruction on and consideration of such a defense theory, counsel should consider presenting expert testimony or other evidence — such as the defendant’s testimony — as to the effect of the drug in cases involving drug intoxication. (See People v. Ivans (92) 2 CA4th 1654, 1661-62.)
[Research Note: See FORECITE BIBLIO 4.20, et al.]
F 4.21 n8 Intoxication: Impact Of Physical Trauma.
The requisite specific intent and mental state may also be negated by physical trauma suffered by the defendant. (See FORECITE F 4.010a.)
[Research Note: See FORECITE BIBLIO 4.20, et al.]
F 4.21 n9 Counsel Ineffective For Failure To Request Instruction Pinpointing Intoxication And Mental State.
In People v. Webb DEPUBLISHED (94) 27 CA4th 242, 251-56 [32 CR2d 582], the court reversed a murder conviction based on ineffective assistance of counsel for failure to request that CJ 4.21 be modified to require the jury to consider intoxication in determining whether the defendant formed the mental state of premeditation and deliberation. [Research Note: See FORECITE BIBLIO 4.20, et al.] [A copy of the Webb opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-209.]
People v. Castillo (97) 16 C4th 1009 [68 CR2d 648] held that counsel is not ineffective for failing to request a pinpoint instruction specifically relating intoxication to the mental state of premeditation and deliberation. However, the opinion does not preclude such instruction when requested.
[Research Note: See FORECITE BIBLIO 4.20, et al.]
F 4.21 n10 Mental State — Intoxication To Negate Malice.
See FORECITE F 3.31.5 n2 and F 4.21 n2.
[Research Note: See FORECITE BIBLIO 4.20, et al.]
F 4.21 n11 Does Due Process Require Consideration Of Intoxication In Determining All Mental Elements Of the Charge?
PC 22 and PC 28 purport to permit evidence of intoxication and mental impairment to disprove only specific intent, malice and premeditation/deliberation. (But see People v. Mendoza (98) 18 C4th 1114, 1131-32 [77 CR2d 428] [intoxication may negate knowledge and intent required for aiding and abetting].)
However, to the extent that PC 22 and PC 28 do not permit intoxication to negate certain types of mental states, they may conflict with the defendant’s right to present relevant evidence with respect to the elements of the offense charged. (See Rock v. Arkansas (87) 483 US 44, 55-56 [97 LEd2d 37; 107 SCt 2704]; Chambers v. Mississippi (73) 410 US 284 [35 LEd2d 297; 93 SCt 1038]; see also People v. Bobo (90) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state].) Failure to allow evidence and jury instructions which negate an element of the charge may implicate the defendant’s federal constitutional rights to trial by jury and due process (6th & 14th Amendments) which require the prosecution to prove every element of the charge. (In re Winship (70) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; People v. Figueroa (86) 41 C3d 714, 724 [224 CR 719]; People v. Dillon (83) 34 C3d 441, 473 [194 CR 390]; see also People v. Bobo (90) 229 CA3d 1417, 1442 [3 CR2d 747].)
Montana v. Egelhoff (96) 518 US 37 [135 LEd2d 361; 116 SCt 2013] failed to definitively resolve this issue. 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. The four dissenting justices argued that exclusion of evidence relevant to the determination of an essential mental element of the charge violates due process. And, 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. [For a thorough discussion of the limitations of Egelhoff see “Egelhoff Again,” Peter Westen, 36 Am.Crim. L. Rev. 1203 (1999) [thoroughly analyzing the limitations of Egelhoff]].
Hence, the constitutionality of the statutory exclusion of intoxication and mental impairment evidence as to certain mental elements by PC 22 and PC 28 may depend on whether the statutes are interpreted to redefine mens rea or, as is more consistent with their language and apparent intent, as simple evidentiary limitations. [Briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-770.]
(See FORECITE PG VII(C)(48).)
RESEARCH NOTES
Implicit Redefinitions, Evidentiary Proscriptions, and Guilty Minds: Intoxicated Wrongdoers After Montana v. Egelhoff, Brett G. Sweitzer, 146 U. Pa. L. Rev. 269, November, 1997.
Montana v. Egelhoff: Abandoning a Defendant’s Fundamental Right To Present A Defense, Jeffrey Scott Robinette, 46 Cath. U. L. Rev. 1349, Summer 1997.
“Egelhoff Again,” Peter Westen, 36 Am.Crim. L. Rev. 1203 (1999) [thoroughly analyzing the limitations of Egelhoff].
F 4.21 n12 Difference Between “Specific Intent” And “Mental State”.
[See FORECITE F 2.02 n4]
F 4.21 n13 Failure To Request Pinpoint Instruction On Intoxication As IAC.
[Briefing arguing that failure to request an intoxication pinpoint instruction was Ineffective Assistance of Counsel under the 6th Amendment (IAC) is available to FORECITE subscribers, ask for Brief Bank #B-697.]
F 4.21 n14 Expert Testimony Regarding Defendant’s Formation Of Mental State.
(See FORECITE F 3.32 n6.)
F 4.21 n15 Arson: Voluntary Intoxication As A Defense.
(See FORECITE F 14.80 n4.)
F 4.21 n16 Mental Disease Or Defect: Presumption Of Sanity Violates Due Process.
See FORECITE F 3.32 n9.
F 4.21 n17 Idiocy: Affirmative Defense (PC 26).
(See FORECITE F 4.016 n1.)
F 4.21 n18 Intoxication And/Or Mental Disease To Negate Malice: Challenge To Saille In Light Of Lasko/Blakeley.
See FORECITE F 3.32 n11.
F 4.21a
Effect Of Intoxication Upon Special Circumstance Or Enhancement Findings
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC 6th Edition, CJ 4.21 was amended, adopting FORECITE’s recommendation that CJ 4.21 be amended to apply to enhancement and/or special circumstance allegations.
*To be inserted after the first paragraph of CJ 4.21 when appropriate:
[In the __________ enhancement alleged in Count ___ of the information a necessary element is the existence in the mind of the defendant of the specific intent to __________.]
[In the special circumstance allegation of the information charged in Count ___ of the information a necessary element is the existence in the mind of the defendant of the specific intent to ___________ [and] the mental state of __________.]
Points and Authorities
In People v. Ramirez (90) 50 C3d 1158 [270 CR 286], the Supreme Court recognized that, when warranted by the evidence, CJ 4.21 is necessary to assure that the jurors will consider the defendant’s voluntary intoxication in determining whether he acted with the specific intent or proscribed mental state required for a particular offense. Obviously, this rule applies with equal force to the specific intent and mental states necessary for any enhancements or special allegations included in the charge. Indeed, the court in Ramirez implicitly recognized that if a particular special circumstance requires proof of specific intent and if there is evidence that the defendant’s intoxication effected his mental processes then CJ 4.21 would apply to the special circumstance allegation. (Ramirez 50 C3d at 1182.)
Accordingly, CJ 4.21 should be supplemented to include references to the specific intent and mental states necessary for proof of any enhancement and/or special circumstance allegations.
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).]
NOTES
This instruction must be requested. (People v. Saille (91) 54 C3d 1103 [2 CR2d 364].)
RESEARCH NOTES
See FORECITE BIBLIO 4.20 – 4.23.
F 4.21b
Intoxication: When Combined With Mental Defect, Etc.
*To be added to CJ 4.21 ¶ 2, line 3 after “… consider that fact …”:
separately or in combination with any evidence of defendant’s [mental disease] [mental defect] [or] [mental disorder].
Points and Authorities
The line between intoxication and mental defect can be unclear. Hence, when the evidence is unclear whether the defendant’s mental impairment stems from mental defect, intoxication or both CJ 3.32 and CJ 4.21 should be modified to assure the jury will consider the mental defect and intoxication evidence together.
People v. Saille (91) 54 C3d 1103, 1119 [2 CR2d 364] firmly established the defendant’s right to a pinpoint instruction upon matters which may negate a requisite element of the charge. (See also People v. Welch (64) 61 C2d 786, 789-90 [40 CR 238] [coram vobis granted based on undiscovered evidence that alcohol combined with brain damage produced insanity].)
(See also FORECITE F 3.32 n11.)
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).]
NOTES
[Copies of sample instructions relating intoxication to brain damage are available to FORECITE subscribers. Ask for Instruction Package # I-855.]
F 4.21c
Effect Of Intoxication On Aiding and Abetting
*Re: CJ 4.21:
(See FORECITE F 4.21.2a.)
F 4.21d
Intoxication Or Mental Impairment: Negation Of Knowledge Element
*Re: CJ 4.21:
[See FORECITE F 1.20b and 4.21 n4.]
F 4.21e
Voluntary Intoxication: Jury “Must” Consider
*Modify CJ 4.21 ¶ 2 to provide as follows: [added language is capitalized and underlined, deleted language is between <<>>]:
If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you <<should>> MUST consider that fact in deciding whether defendant had the required [specific intent] [mental state].
Points and Authorities
By using the term “should” instead of “must,” CJ 4.21 effectively informs the jury that “while it is recommended that it consider the defense evidence, it is not obligated to do so.” Obviously it would violate the defendant’s constitutional rights for the jury to not at least consider defense evidence or a defense theory.
It is a fundamental tenet of the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) that the jury consider exculpatory evidence upon which the defendant relies to leave the jury with a reasonable doubt as to any element of the charge. (See e.g., Martin v. Ohio (87) 480 US 228 [94 LEd2d 267; 107 SCt 1098] [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate In re Winship (70) 397 US 358 [25 LEd2d 368; 90 SCt 1068]]; Rock v. Arkansas (87) 483 US 44 [97 LEd2d 37; 107 SCt 2704] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Chambers v. Mississippi (73) 410 US 284 [35 LEd2d 297; 93 SCt 1038]; People v. Bobo (90) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state]; see also FORECITE PG VII(C)(28).)
Accordingly, CJ 4.21 is defective in that it informs the jury that consideration of voluntary intoxication is permissive (“you may consider…”) rather than mandatory. To assure the defendant’s constitutional right to consideration of all the evidence, the jury should be instructed that it “must” consider evidence of voluntary intoxication. (See Commonwealth v. Gould (MA 1980) 405 NE2d 927 [380 Mass. 672, 685-86 fn 16] [jury should be instructed to consider evidence of substantial mental impairment in determining degree of murder]; Commonwealth v. Perry (MA 1982) 433 NE2d 446 [385 Mass. 639, 648-49] [jury should be instructed to consider evidence of intoxication in determining degree of criminal culpability]; State v. Ortiz (91) 588 A2d 127, 137-138 [217 Conn. 648] [instruction in murder prosecution that jury “must” consider defendant’s wholly circumstantial evidence of intoxication along with all testimony in determining whether State met burden of proving defendant’s specific intent beyond reasonable doubt adequately instructed jury]; Wisconsin Jury Instructions–Criminal (1998 ed.) WIS JI-Criminal No. 765 [“You must consider this evidence [of voluntary intoxication] in deciding whether the defendant acted with the … mental state … required for this offense”]; but cf. State v. Foster (95) 528 NW2d 22 [191 Wis.2d 14] [standard instruction, “you must consider evidence that [defendant] was intoxicated” improperly suggested that the defendant really was intoxicated — jury should have been told that it “must consider the evidence regarding whether the defendant was intoxicated at the time of the alleged offense”].)
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 FORECITE PG VII(C).]
(See FORECITE F 4.21.2b.)