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F 4.21.2 n1 Effect Of Intoxication On Aiding and Abetting: Relevance Of Intoxication To Natural And Probable Consequences.
People v. Mendoza (98) 18 C4th 1114, 1133 [77 CR2d 428] limited the applicability of intoxication to the question of whether the defendant had the required mental state to be an aider and abettor. According to Mendoza, intoxication is not relevant on the question of whether a charged crime was a natural and probable consequence of the target crime per CJ 3.02. (See CALJIC 4.21.2.) However, the natural and probable consequences doctrine is based on objective reasonableness. (See People v. Woods (92) 8 CA4th 1570, 1587 [11 CR2d 231].) Hence, the defendant’s intoxication should be considered by the jury in determining whether a reasonable person in the defendant’s state of intoxication would have foreseen the consequences. (See People v. Ochoa (93) 6 C4th 1199, 1204 [26 CR2d 23]; see also People v. Mathews (94) 25 CA4th 89, 99 [30 CR2d 330]; People v. Humphrey (96) 13 C4th 1073, 1083 [56 CR2d 142].)
Effect Of Intoxication On Aiding and Abetting:
Pinpoint Instruction Specifying The Elements
SUBSEQUENT HISTORY: Former FORECITE F 4.21c, was included in FORECITE years before the CALJIC January 1999 Pocket Part inclusion of CJ 4.21.2 (1999 New) “Voluntary Intoxication–Aider Abettor.”
ALERT: See FORECITE F 4.21.2 et seq. for additional issues related to CJ 4.21.2.
Effect Of Intoxication On Aiding and Abetting: Jury “Must” Consider Intoxication
*Modify CJ 4.21.2 as follows [added language is capitalized; deleted language is between << >>]:
In deciding whether a defendant is guilty as an aider and abettor, you <<may>> MUST consider voluntary intoxication in determining whether a defendant tried as an aider and abettor had the required mental state.
Points and Authorities
By using the term “should” instead of “must,” CJ 4.21.2 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 4.21.2 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 4.21e.)
Effect Of Intoxication On Aiding And Abetting:
Reasonable Doubt Favors Defendant
*Add to CJ 4.21.2:
If from all the evidence you have a reasonable doubt whether the defendant [had such knowledge of] formed such specific intent, you must give the defendant the benefit of that doubt and find that [he] [she] did not have such [knowledge or] specific intent.
Points and Authorities
The defendant has a right to an instruction which relates a theory of the defense, such as intoxication, to the required mental elements. (People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364].) Because aiding and abetting requires a specific intent which may be negated by intoxication (see People v. Mendoza (98) 18 C4th 1114, 1131-33 [77 CR2d 428]) specific instruction relating intoxication to aiding and abetting should be given on request. (See CJ 4.21.2.) Moreover, as with other defenses founded upon a factual contention which, if established, would tend to overcome or negate proof of an element of the charged offense such as identity (CJ 2.91), alibi (CJ 4.50), unconsciousness (CJ 4.31) or self-defense (CJ 5.15) the jury should be instructed that the defendant need only leave the jury with a reasonable doubt as to mistake of fact. (See People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600] [approving CJ 2.91 and CJ 4.50 — which require acquittal if there is a reasonable doubt as to the defense]; see also EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Tewksbury (76) 15 C3d 953, 963-64, fn 9 [127 CR 135] and FORECITE PG III(A).)
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).]