Category Archives: Uncategorized

Reversible Error to Allow In-Custody Testimony of Co-Defendant Which Was Not A “Declaration Against Penal Interest”

In People v. Gallardo (2017) 13 Cal.App.5th 51 the judge committed reversible error by admitting extrajudicial  statements of a non-testifying third codefendant regarding the role of the other two defendants in the crime.


After the declarant codefendant was arrested, the prosecution planted two informants in his cell for the purpose of eliciting information from him concerning the charged incident. Their conversations, which were recorded, included incriminating statements that also inculpated the two other codefendants.


Admission of these statements did not violate the Confrontation Clause because they were not testimonial.  However, their admission was still improper because they were hearsay and did not qualify as admissions against penal interest.  The hearsay exception does not apply to statements “‘that are self-serving or otherwise appear to shift responsibility to others…,’” even if they were “‘made within a broader narrative that is generally self-inculpatory.’”  Thus, the declarant’s statements were not admissible although they included some admission of the declarant’s complicity “by demonstrating [he] had knowledge of what had occurred…, [because] the statements nonetheless ‘placed the major responsibility’ on his co-defendants.’”


The appellate court further held that the statements were made under circumstances questioning their reliability because they “were intended, at least in part, to mitigate [the declarant’s] own blameworthiness[;]” the declarant “provided conflicting descriptions of his and his co-defendants’ respective role[s] in the offense…; [and] all of [his] statements identifying [one codefendant] as the shooter and [the other codefendant] as the driver were preceded by leading questions or narrative statements by the informants.”


Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM

This post Aider And Abettor Liability For Implied Malice Murder: Required Elements Not Included in CALCRIM addressed the failure of the CALCRIM instructions to include the required element when the defendant is charged with aiding and abetting a perpetrator who is alleged to have acted with implied malice.


These defects in the CALCRIM instructions were also recognized in People v. Maldonado (January 30, 2023, A161817) [pp. 13-14] which concluded that CC 401, CC 520, and CC 521 did not require that the jury to find that the defendant “was an aider and abettor who facilitated the killing with personal disregard for human life….”

Latest CALCRIM Revisions

Effective March 21, 2022, the CALCRIM committee revised numerous existing instructions and adopted several new ones.


To view these changes plus Selected FORECITE Commentary click HERE



Instruction Number


Instruction Title




User Guide




Circumstantial Evidence: Sufficiency of Evidence




Union of Act and Intent: General Intent




Union of Act and Intent: Criminal Negligence




Eyewitness Identification



Testimony of Person With Developmental, Cognitive, or Mental Disability



Defendant’s Flight


NEW 378


Consciousness of Guilt: General




Justifiable Homicide: Self-Defense or Defense of Another




Excusable Homicide: Accident




Excusable Homicide: Accident in the Heat of Passion




First Degree Murder: Hate Crime




Second Degree Murder: Peace Officer



Voluntary Manslaughter; Imperfect Self-Defense or Imperfect Defense of Another – Lesser Included Offense



Special Circumstances: Killing by Street Gang Member


860, 862, 863, 875


Great Bodily Injury Instructions



Instruction Number


Instruction Title



Assault with Intent to Commit Specified Crimes (While Committing First Degree Burglary)

982 & 983


Brandishing Firearm or Deadly Weapon

1000, 1001, 1002, 1003, 1004, 1005, 1015, 1016, 1030, 1031, 1045, 1046, 1060, 1123  

Sex Offenses


1200, 1201, 1203, 1215



1350, 1351, 1352, 1354,



Hate Crimes


1400 & 1401


Gang Instructions












Driving With Suspended or Revoked Driving Privilege



Possession of Controlled Substance with Intent to Commit Sexual Assault



Possession of Deadly Weapon With Intent to Assault




Possession of Firearm by Person Prohibited by Statute: Self-Defense




Carrying Firearm: Active Participant in Criminal Street Gang


2670 & 2672


Lawful Performance


2720 & 2721


Assault by Prisoner


NEW 2749

Bringing or Sending Controlled Substance or Paraphernalia into Penal Institution

NEW 3010

Eavesdropping on or Recording a Confidential Communication Using an Electronic Device

3100 & 3101


Prior Conviction




Personally Armed With Deadly Weapon




Personally Used Deadly Weapon




Great Bodily Injury












Right to Self-Defense or Defense of Another (Non-Homicide)


CSC Identifies Problems in CJ 2.28 Which Also Apply to CC 306

In People v. Nieves (2021) ______Cal 5th ______(May 3, 2021, S092410) [pp. 68-69] the CSC concluded that:

…[I] was error to instruct the jury with CALJIC former No. 2.28, given the deficiencies we have identified in that instruction [Citation to People v. Thomas (2011) 51 Cal.4th 449, 483] and the scope of discovery violations in defendant’s case.

First, the instruction informed the jury that the “defendant” concealed and failed to timely disclose evidence when there was no indication defendant played any such role. It was therefore misleading to suggest that “the defendant” bore any responsibility for [her] attorney’s failure to provide discovery.

Second, although the instruction indicated that concealment and late disclosure could affect the prosecution, there was no evidence that this had actually deprived the prosecutor of the chance to subpoena witnesses or marshal evidence in rebuttal.

Finally, the instruction was deficient in informing the jury that the weight and significance of any delayed disclosure are matters for your consideration, because it offered no guidance on how this failure might legitimately affect their deliberations.

[Internal citation and punctuation omitted.]


These concerns also apply to CC 306 even though it eliminated any express suggestion that the defendant personally concealed or failed to disclose evidence. As the CALCRIM bench notes recognize, there is still a danger that CC 306 will all the jurors to speculate that the defendant is to blame for the failure to timely disclose:


The court should consider whether giving this instruction could jeopardize the defendant’s right to a fair trial if the jury were to attribute a defense attorney’s malfeasance to the defendant.

Moreover, as with CJ 2.28, CC 306 fails to provide the jurors with any guidance as to how the failure to disclose “might legitimately affect their deliberations.”


In sum, Nieves confirms that the giving of CC 306 is problematic when applied to the defense and that neither the instruction nor the evidence of counsel’s failure to timely produce discovery should be given to the jurors.


See also

F 306 Inst 1 Defense Has No Obligation To Present Evidence

F 306 Inst 3 Failure To Provide Discovery Is Not Alone Sufficient To Convict

F 306 Note 1 Improper To Penalize Defendant For Counsel’s Discovery Violation

F 306 Note 2 Constitutional Challenge To Instruction Penalizing Defendant For Discovery Violation

Felony Murder Special Circumstances: Tison Factors — Jury Should Not Give Undue Weight to Factors Specifically Included CC 703

In reliance on Banks and Clark, CC 703 identifies a number of specific factors for the jurors “may consider” in deciding the “reckless indifference” and “major participant” elements of the felony murder special circumstance.


As to reckless indifference CC 703 tells the jurors:


…Among the factors you may consider are:

  • Did the [sic] [Was the defendant] present during the _____________ <insert underlying felony?
  • Did the defendant know that [a] lethal weapon[s] (was/were) likely to be used?
  • Did the defendant know that [a] lethal weapon[s] (was/were) used?
  • Did the defendant know the number of weapons involved?
  • Was the defendant near the person(s) killed when the killing occurred?
  • Did the defendant have an opportunity to stop the killing or to help the victim(s)?
  • How long did the crime last?
  • Was the defendant aware of anything that would make a coparticipant likely to kill?
  • Did the defendant try to minimize the possibility of violence?
  • <insert any other relevant factors>


As to the major participant issue CC 703 states:


Among the factors you may consider are:

  • What was the defendant’s role in planning the crime that led to the death[s]?
  • What was the defendant’s role in supplying or using lethal weapons?
  • What did the defendant know about dangers posed by the crime, any weapons used, or past experience or conduct of the other participant[s]?
  • Was the defendant in a position to facilitate or to prevent the death ?
  • Did the defendant’s action or inaction play a role in the death?
  • What did the defendant do after lethal force was used?
  • <insert any other relevant factors.>


Such instructions — which list specific fact based considerations or factors for the jury to “consider” — are not necessarily improper. (See e.g, People v. Wright (1988) 45 C3d 1126, 1149 [eyewitness identification factors].) In fact, this kind of instruction appears elsewhere in CALCRIM. (See PG XI(D)(3) CALCRIM Instructions Listing Specific Factors For Juror Consideration.)

However, when specific evidentiary factors are included in an instruction a cautionary instruction may be appropriate to avoid the danger the jurors may give undue emphasis to the enumerated factors. (See e.g People v. Taylor (2010) 48 Cal.4th 574, 656 [jury may place “undue emphasis” on overly specific instruction]; cf. Davis v. Erickson (1960) 53 C2d 860, 863-64.)

Sample Instruction:

Do not give the listed factors [greater] [undue] weight simply because they are mentioned in this instruction.

March 2021 CALCRIM Revisions

Effective March 12, 2021, the Judicial Council approved the following changes to CALCRIM:


1.Revisions to CALCRIM 202, 222, 520, 591, 730, 763, 1140, 1151, 1193, 1202, 1820, 2044, 2520, 2521, 2522, 2624, 2651.

2.Adoption of new CALCRIM 768 and 1933.

3.Revocation of CALCRIM 3220.


Below is overview of some of the proposed changes.


Note-Taking and Reading Back of Testimony (CALCRIM 202); Evidence (CALCRIM 222)


In People v. Triplett (2020) 48 Cal.App.5th 655, the court found that the jury’s request for transcripts should have been broadly interpreted as a request for readback of testimony. The committee added a bench note that, if the jury requests transcripts, courts should remind the jury of its right to request readback, stating what testimony it wants read.


FORECITE Tags: Readback Issues


FORECITE Commentary:


CC 202 Erroneously Limits Jurors’ Ability To Request Readback Of Testimony
December 16th, 2020


Vehicular Manslaughter While Intoxicated (CALCRIM 591)


In People v. Machuca (2020) 49 Cal.App.5th 393, 400–401, the court held that a violation of Vehicle Code section 23153 is not a lesser included offense of Penal Code section 191.5 when the offenses involve separate victims. The committee added this case to the Lesser Included Offenses section and clarified that injury must be to the same victim for driving under the influence causing injury to be a lesser included offense. The committee added this case to the Lesser Included Offenses section and clarified that injury must be to the same victim for driving under the influence causing injury to be a lesser included offense.


Special Circumstance: Murder in Commission of Felony (CALCRIM 730)


In People v. Garcia (2020) 46 Cal.App.5th 123, 149–155, the prosecutor argued that the defendant was an actual killer because he handed duct tape to the co-perpetrator who then used the duct tape to cover the victim’s mouth, ultimately causing the victim to die of asphyxiation. The court held that under these facts, only the person or persons who placed the duct tape on the victim’s mouth were actual killers within the meaning of Penal Code section 3 190.2(b). In a footnote, the court stated that CALCRIM 730 may have contributed to the legal error here and suggested that the committee consider revisions to clarify the concept of actual killer. Based on this opinion, the committee considered changing the definition of actual killer, which the instruction describes as someone who “did an act that caused the death.” However, the committee concluded that a change to the language would raise more issues in cases where an act is a substantial factor in causing death, when that act is combined with an act by another that could have caused death. The committee concluded that the error in Garcia was the result of improper prosecutorial argument, not the instruction. Thus, a note should be sufficient to prevent an erroneous argument about actual killer liability. The committee added a bench note that explains the meaning of actual killer versus aider and abettor.


FORECITE Commentary: CC 703 and/or CC 730 should be modified to preclude the jury from predicating a felony murder special circumstance on the defendant being an actual killer unless the prosecution has proved beyond a reasonable doubt that the defendant personally killed the victim.  CALCRIM’s Failure to Define the Term “Actual Killer” Erroneously Allows the Jurors to Conclude That an Aider and Abettor Can Be an “Actual Killer”


FORECITE Tags: CC 703, CC 730, Tison/Banks


Death Penalty: Factors to Consider (CALCRIM 763)


The committee added a sentence to inform jurors to disregard any jury instructions given in a prior guilt or sanity phase if they conflict with the jury’s consideration and weighing of factors. Although a similar admonition appears in CALCRIM 761 (Death Penalty: Duty of Jury), the committee decided to remind jurors of this important admonition by adding it to this instruction.


FORECITE Commentary: If the trial court instructs the jury to disregard all instructions given at the guilt phase, it must give those instructions which are applicable to the evaluation of the evidence at the penalty phase.  Death Penalty: Repeating Guilt Phase Instructions


Penalty Trial: Pre-Deliberation Instructions (Proposed New CALCRIM 768)


A committee member pointed out that CALCRIM does not contain a pre-deliberation instruction for penalty trials and suggested that the committee adapt one from CALCRIM 3550 (Pre-Deliberation Instructions). Through careful line-by-line analysis, the committee drafted this new instruction for courts to use during the penalty phase.


FORECITE Commentary: As with CC 3550 there are issues which the new death penalty pre-deliberation instruction does not address. See e.g.,


  • F 3550 Pre-Deliberation Instruction
    • F 3550 Inst 1 Jurors Duty
    • F 3550 Inst 2 Individual Juror May Communicate With Judge
    • F 3550 Inst 3 Jurors Not To Take Judge’s Comments As Reflecting On Attorneys And Defendant
    • F 3550 Inst 4 Duty to Deliberate
    • F 3550 Inst 5 Duty to Deliberate: Impropriety of Juror-on-Juror Coercion
    • F 3550 Inst 6 Duty To Deliberate: Juror May Think About The Case And Make Notes While Deliberations Are In Recess
    • F 3550 Inst 7 No Electronic Research By Jurors Individually Or As A Group
    • F 3550 Inst 8 Jurors Must Not Conduct Investigation, Tests, Or Experiments During Deliberations
    • F 3550 Inst 9 No Limitation On Consideration Of Punishment Of Witness Granted Immunity/Leniency
  • F 3550 NOTES
    • F 3550 Note 1 Procedures And Instructions Re: Juror Deadlock
    • F 3550 Note 2 Propriety Of Giving The “Virga Firecracker” Instruction To A Deadlocked Jury
    • F 3550 Note 3 Individual Opinion Required: Duty To Deliberate – Informing Jury As To Possibility Of A Hung Jury
    • F 3550 Note 4 Duty To Deliberate: Jury Should Be Encouraged To Discuss The Case
    • F 3550 Note 5 Dismissal Of Juror For Failure To Deliberate
    • F 3550 Note 6 Jurors Must Only Discuss Case when All Jurors Are Together In The Jury Room
    • F 3550 Note 7 Improper To Refer To The Prosecution as “The People”
    • F 3550 Note 8 Discharge Of Juror: Applicability Of Double Jeopardy
    • F 3550 Note 9 Talking With Discharged Juror Prohibited By California Rules Of Professional Conduct
    • F 3550 Note 10 Judicial Misconduct: Informing Jury That Their Verdict Was Inconsistent
    • F 3550 Note 11 Juror Experiments During Trial Or Deliberations
    • F 3550 Note 12 Personal Expertise Of Juror

See also
Pre-Deliberation Instructions (CC3550): Modification When Received Benefits from Prosecution in Exchange for Testimony


Felony Unlawful Taking or Driving of Vehicle (CALCRIM 1820)


In People v. Bullard (2020) 9 Cal.5th 94, 110, the California Supreme Court clarified the substantive effect of Proposition 47 on Vehicle Code section 10851: “Except where a conviction is based on post theft driving (i.e., driving separated from the vehicle’s taking by a substantial break), a violation of section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less.” In accordance with this holding, the committee simplified the instruction by combining the two taking alternatives (taking with intent to temporarily deprive and taking with intent to permanently deprive). The text now contains only two alternatives: taking with intent to deprive and post theft driving. In accordance with Bullard, only the taking alternative includes the element that the vehicle was worth more than $950.


FORECITE Tags: CC 1820; Proposition 47


Possession of Counterfeiting Equipment (Proposed New CALCRIM 1933)


In People v. Seo (2020) 48 Cal.App.5th 1081 [262 Cal.Rptr.3d 497], the defendant was convicted of possessing materials used to counterfeit currency. The defendant argued that the trial court incorrectly instructed the jury about the elements of Penal Code section 480(a). The court upheld the instruction that was given but agreed that it lacked clarity and proposed a clearer version for courts to consider in future cases. CALCRIM does not currently have an instruction for this offense. However, the committee reviewed the court’s proposed instruction and drafted a new jury instruction based on Penal Code section 480.


False Personation (CALCRIM 2044)


An attorney noted that this instruction failed to specify sufficiently that a separate act, apart from the false personation, is required for a violation of Penal Code section 529. The committee reviewed prior case law and decided to change the existing language of “did anything” to “did any act.” In reviewing the instruction, the committee determined that the instruction was trying to do too much by covering both sections 529 and 530 of the Penal Code. To clarify the instruction, the committee decided to remove those parts that relate to Penal Code section 530. The committee intends to draft a new instruction for Penal Code section 530 in the next publication cycle.


FORECITE Tags: CC 2044


Carrying Concealed Firearm(CALCRIM 2520, 2521 & 2522)


People v. Duffy (2020) 51 Cal.App.5th 257, 266 held that different subsections of Penal Code section 25400 do not describe separate offenses. The committee added this case and its holding to the Related Issues section, under the heading “Multiple Convictions Prohibited.”




F 3515.1 Multiple Counts: Basic Instructions

F 3515.2 Multiple Counts: Specific Crimes

F 3515.2 NOTES


Threatening a Witness After Testimony or Information Given (CALCRIM 2624); Trying to Prevent Executive Officer From Performing Duty (CALCRIM 2651)


In People v. Smolkin (2020) 49 Cal.App.5th 183, 188, the court held that “a conviction under [Penal Code] § 69 based on threatening speech is unconstitutional if the speech was not a ‘true threat.’” CALCRIM 2624 already contains instructional language based on the reasonable listener standard stated in People v. Lowery (2011) 52 Cal.4th 419, 427. The committee inserted the same language from CALCRIM 2624 but didn’t include the phrase “rather than just an expression of jest or frustration.” The committee felt that the omitted phrase—by providing examples of what would not constitute a true threat—could potentially mislead jurors into concluding that jest or frustration was the only way in which a threat could not satisfy the reasonable listener standard.


Amount of Loss (CALCRIM 3220)


This enhancement penalty instruction is based on Penal Code section 12022.6, which contained a sunset date of January 1, 2018. Because the Legislature neither extended this date nor otherwise revived the statute, the enhancement no longer applies to offenses committed on or after January 1, 2018. As a result, the committee decided to revoke this instruction.

March 2020 Revisions

In November 2019 CALCRIM published proposed revisions in an Invitation to comment by December 20, 2019. The proposed revisions were to be effective March 24, 2020 after their approval by the Judicial Council at their meeting on that date. However, the Chief Justice cancelled the meeting while stating that “[a]ny pressing business of the Judicial Council can be postponed or accomplished by circulating order via email.” (See


It is unclear whether the jury instruction meeting was rescheduled or if the revisions were approved by “circulating order.” A September 2020 order stated, regarding ” Relevant Previous Council Action” that: “The council approved the last CALCRIM release at its April 2020 meeting.” (See,


However, there is no record of an April 2020 meeting during which jury instruction revisions were approved.



Typically, a record of meetings where instruction revisions were approved can be found on the Council’s website with a full agenda attached. Nor is there any record of the disposition of public comments received in response to the November/December 2020 Invitation to Comment.


Furthermore, every proposed change from the Invitation to Comment was incorporated into the published instructions verbatim. This suggests that the normal process of revising and tweaking the proposed changes in light of public input may not have occurred. [There does appear to be one typo in CC 703 which contains the following incomplete passage which was not in the proposed changes: “[• Did the present during the <insert underlying felony>?]”


Here is a list of the changes the instructions that were revised in April 2020. A copy of the Invitation to Comment can be found here:



Instruction Number Instruction Title



User Guide


101 & 200


Cautionary Admonitions




Accomplice Testimony




Failure to Explain or Deny Adverse Testimony




Presence of Support Person/Dog




Justifiable Homicide: By Public Officer


540B & 540C


Accomplice Liability Felony Murder




Murder: Alternative Theories




Vehicular Manslaughter: Collision for Financial Gain




Attempted Murder




Special Circumstances: Felony Murder



Testimony on Intimate Partner Battering and Its Effects; Testimony on Rape Trauma; Testimony on Child Sexual Abuse Accommodation Syndrome



Assault with Weapon or Force Likely




Sexual Penetration offenses



Felony Murder: Disagreements and Confusion


On April 23, 2010, CC 521 was revised. As explained by the CC Committee, “the definition of deliberation and premeditation in [CC No. 521], Murder: Degrees could be misleading in cases in which an extended act, such as strangling or drowning, causes the homicide.” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 23, 2010, p. 4.)  The Committee thus changed the word “committing” to “completing” in the last sentence of the instruction, and provided an optional plural form for the word “act” so that this part now reads, “The defendant acted with premeditation if (he/she) decided to kill before completing the act[s] that caused death.”


On February 25, 2013, the CC Committee revised CC 521 again, and also revised the last paragraph of CC 520. The CC Committee explained:


Two judges from the Superior Court of Los Angeles County reported that these instructions are confusing to jurors, because there is no distinct explanation of second degree murder. Apparently, recent revisions to these instructions may not have had the desired effect because jurors continue to ask judges for a definition of second degree murder. The committee considered  two different, specific suggestions for clarifying this concept, which prompted the proposed changes in the current drafts. When the proposed changes circulated for public comment, several commentators stated that they found the change to [CC 521], First Degree Murder, confusing because they believed the proposed language suggested jurors would need to find the defendant guilty of second degree murder if they determined that defendant was not guilty of first degree murder.

The committee disagrees with these comments, because jurors hear and interpret the instructions as a whole, and not in isolation. Jurors hear [CC 520], First or Second Degree Murder with Malice Aforethought, immediately before hearing [CC 521]. [CC 520] guides jurors in deciding whether the defendant committed murder, regardless of the degree. The purpose of [CC 521], First Degree Murder, is to walk jurors through the process of determining whether any murder committed is of the first degree, as the third paragraph of the instruction indicates. Any murder that does not meet the requirements for first degree murder is by default a second degree murder. Jurors will also hear either [CC 640] or [CC 641], the instructions about lesser included offenses when a defendant is charged with first degree murder. These instructions guide jurors through the decision-making process in careful detail. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of February 26, 2013, pp. 2-3.)

CC 3425 Unconsciousness: Improper Presumption of Consciousness


In response, CC 3425 was revised. As explained by the Committee, “In People v. Mathson, [] the Court of Appeal concluded that because the instruction’s standard concluding language on reasonable doubt said ‘if, however’ instead of ‘unless,’ it was ‘unnecessarily ambiguous.’ The court also suggested adding an explanation that only involuntary intoxication is the basis for a valid defense.” The committee responded to both of these suggestions with the proposed revisions in the current draft. (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013) at p. 5.)


However, there is a flaw in the new instruction. The CC states, “[i]f there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious.” No authority is cited in support of this sentence. To the contrary, one of the cases cited as Authority by CC says: “‘Unconsciousness,’ as the term is used in the rule just cited, need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist–and the above-stated rule can apply–where the subject physically acts in fact but is not, at the time, conscious of acting.” “ If unconsciousness can be found where the defendant physically acts conscious in fact, then the jury cannot accurately be told that if they find that the defendant acted as if he were conscious,  the jury should conclude that the defendant was conscious. Instead of the erroneous sentence, the sentence from the Newton case should be given to the jury.” (CCJICH (2014-2015 §3:5, pp. 110-111.)


Court of Appeal Identifies Flaws in Unconsciousness Instruction

People Mathson (2012) 210 Cal. App. 4th 1297, disapproved CC 3425 with respect to the portion that reads, “If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was legally conscious.” The Court of Appeal noted two problems: (1) The instruction is ambiguous because “it could mean that the jury is only to consider whether there is reasonable doubt based on the other evidence if it finds that a defendant acted as if he was not conscious.” (Id. at 1323.) (2) “[I]nstead of telling the jurors they must find the defendant unconscious if they have a reasonable doubt that the defendant conscious, the final sentence directs the jurors to find the defendant not guilty. As we have discussed, in an intoxication case, a defendant who was unconscious must be found not guilty only if the intoxication was involuntary. A defendant who was unconscious may still be found guilty if the intoxication was voluntary. Because the last sentence compels the jury to reach a not guilty verdict instead of compelling a finding regarding consciousness, that sentence is potentially confusing.” (Ibid.)