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.)
