SERIES 600 ATTEMPTED MURDER
F 626 VOLUNTARY INTOXICATION CAUSING UNCONSCIOUSNESS: EFFECTS ON HOMICIDE CRIMES
TABLE OF CONTENTS
F 626.1 TITLES AND IDENTIFICATION OF PARTIES
F 626.1 Inst 1 Voluntary Intoxication Causing Unconsciousness: Effects On Homicide Crimes—Title
F 626.1 Inst 2 Identification Of Prosecution And Defendant
F 626.2 INSTRUCTIONS
F 626.2 Inst 1 Modification Of Title
F 626.2 Inst 2 Involuntary Manslaughter: Voluntary Intoxication Short Of Unconsciousness (PC 192)
F 626.2 Inst 3 Involuntary Manslaughter Based On Unconsciousness: Improper Requirement That Lack Of Intent To Kill And Conscious Disregard For Life Must Be Found Beyond A Reasonable Doubt
F 626.2 Inst 4 No Reference To Whether Or Not Intoxication Was Voluntary Unless That Issue Is Raised By The Evidence
F 626.2 Inst 5 Consideration Of Intoxication Regarding Voluntariness And Trustworthiness Of Defendant’s Statements
F 626 NOTES
F 626 Note 1 Voluntary Intoxication Causing Unconsciousness: Effects On Homicide Crimes—CALCRIM Cross References And Research Notes
F 626 Note 2 Killing While Unconscious: Necessity Of Definition Of Unconscious
F 626 Note 3 Involuntary Manslaughter When Defendant Has No Memory Of The Killing
F 626 Note 4 Availability Of Unconsciousness When Defendant Was Aware Before And After The Killing
F 626 Note 5 Negligence In Self-Intoxicating As Basis For Involuntary Manslaughter Instruction
Return to Series 600 Table of Contents.
F 626.1 Titles And Identification Of Parties
F 626.1 Inst 1 Voluntary Intoxication Causing Unconsciousness: Effects On Homicide Crimes—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 626.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 626.2 Voluntary Intoxication Causing Unconsciousness: Effects On Homicide Crimes—Tailoring To Facts: Persons, Places, Things And Theories
F 626.2 Inst 1 Modification Of Title
*Modify CC 626, Title as follows [deleted language is stricken]:
Voluntary Intoxication Causing Unconsciousness: Effects On Homicide Crimes
Points and Authorities
See F 626.2 Inst 2.
F 626.2 Inst 2 Involuntary Manslaughter: Voluntary Intoxication Short Of Unconsciousness (PC 192)
*Add to CC 626:
The crime is involuntary manslaughter if the defendant killed another human being but due to voluntary intoxication:
1. The defendant was unconscious; or
2. Even if conscious, the defendant neither intended to kill nor harbored malice.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Necessity Of Addressing Intoxication Short Of Unconsciousness—CALCRIM 626 informs the jury that when a person voluntarily induces his own intoxication to the point of unconsciousness the jury should return a verdict of involuntary manslaughter. However, this instruction is misleading and incomplete because it does not inform the jury that intoxication short of unconsciousness may also justify a verdict of involuntary manslaughter. In People v. Ray (1975) 14 C3d 20, 27-31, the Supreme Court reasoned that intoxication short of unconsciousness may cause a defendant to commit a killing without actually forming express malice, implied malice or intent to kill. Such a killing, though lacking the elements of murder and manslaughter, would constitute involuntary manslaughter by operation of PC 22. (Ibid.; see also People v. Webber (1991) 228 CA3d 1146, 1160-65; People v. Matta (1976) 57 CA3d 472, 482 and People v. Roberts (1975) 51 CA3d 125, 133; see also California Mandatory Criminal Jury Instruction Handbook (CJER) (2013) § 2.145 [recognizing distinction between pinpoint instruction on voluntary intoxication and court’s sua sponte duty to instruct on involuntary manslaughter as a lesser included offense].)
In People v. Lee (1999) 20 C4th 47 the California Supreme Court held that the trial court is obligated to instruct sua sponte on all theories of involuntary manslaughter presented by the evidence. Hence, because voluntary intoxication short of unconsciousness is a theory of involuntary manslaughter (People v. Ray (1975) 14 C3d 20, 27-31), Lee requires sua sponte instruction on this theory either by modifying CJ 8.47 or by supplemental instruction.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITECG 13.
[See Brief Bank #B-841 for additional briefing on this issue.]
NOTES
Although People v. Saille (1991) 54 C3d 1103, 1121 suggested that the defendant must request instructions such as CJ 8.47 which relate intoxication to the mental state required for murder, Saille did not eliminate the trial court’s responsibility to instruct sua sponte upon the lesser included offense of involuntary manslaughter. (See Saille 54 C3d at 1121.) (See also, PG V(A)(12) [discussing court’s duty under People v. Barton (1995) 12 C4th 186, 198 to instruct sua sponte on intoxication-based lesser included offenses].)
CALJIC NOTE: See FORECITE F 8.47a.
F 626.2 Inst 3 Involuntary Manslaughter Based On Unconsciousness: Improper Requirement That Lack Of Intent To Kill And Conscious Disregard For Life Must Be Found Beyond A Reasonable Doubt
*Modify CC 626 by deleting paragraph 4, which provides:
Involuntary manslaughter has been proved if you find beyond a reasonable doubt that:
1. The defendant killed without legal justification or excuse;
2. The defendant did not act with the intent to kill;
3. The defendant did not act with a conscious disregard for human life;
AND
4. As a result of voluntary intoxication, the defendant was not conscious of (his/her) actions or the nature of those actions.
*Add at end of final paragraph:
. . . and find the defendant guilty of involuntary manslaughter.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
The CALCRIM Deficiency—CALCRIM 626 does not permit the jurors to return a verdict of involuntary manslaughter unless they have found beyond a reasonable doubt that:
1. The defendant killed without legal justification or excuse;
2. The defendant did not act with the intent to kill;
3. The defendant did not act with a conscious disregard for human life;
AND
4. As a result of voluntary intoxication, the defendant was not conscious of (his/her) actions or the nature of those actions.
This language improperly shifts the burden of proof to the defendant. (See generally In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; Carella v. California (1989) 491 US 263 [105 LEd2d 218; 109 SCt 2419]; see also FORECITE F 404.2 Inst 1.)
Except for affirmative defenses, the defendant has no obligation to prove anything. (See FORECITE F 100.1 Inst 1.)
Thus, the defendant should not be obligated to prove lack of intent to kill or lack of conscious disregard for human life. Rather, if the jurors have a reasonable doubt as to the existence of intent to kill or conscious disregard based on intoxication then a verdict of involuntary manslaughter should be returned. (See FORECITE F 315.1.2 Inst 2.)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 626.2 Inst 4 No Reference To Whether Or Not Intoxication Was Voluntary Unless That Issue Is Raised By The Evidence
Absent evidence of involuntary intoxication, modify CC 626 as follows:
¶ 1, sentence 1, delete “voluntary”;
¶ 2, delete or modify to read as follows [deleted language is stricken]:
A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.
¶ 3, sentence 1, delete;
¶ 3, sentence 2, delete “voluntary”;
¶ 4, Element 4, delete “voluntary.”
Points and Authorities
See FORECITE F 625.2 Inst 5.
F 626.2 Inst 5 Consideration Of Intoxication Regarding Voluntariness And Trustworthiness Of Defendant’s Statements
See FORECITE F 3426 Inst 8.
F 626 Notes
F 626 Note 1 Voluntary Intoxication Causing Unconsciousness: Effects On Homicide Crimes—CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
CALCRIM 625 [Voluntary Intoxication: Effects On Homicide Crimes]
Research Notes:
See CLARAWEB Forum, Homicide—Series 500-700.
F 626 Note 2 Killing While Unconscious: Necessity Of Definition Of Unconscious
A definition of unconsciousness (e.g., CJ 4.30/CC 425) should be given in connection with CALCRIM 626. (See, generally, People v. Tidwell (1970) 3 C3d 82, 86; People v. Newton (1970) 8 CA3d 359, 373-78.)
CALJIC NOTE: See FORECITE F 8.47 n2.
F 626 Note 3 Involuntary Manslaughter When Defendant Has No Memory Of The Killing
In People v. Jackson (1989) 49 C3d 1170, 1196, the court recognized that involuntary manslaughter may be predicated upon evidence that the defendant had no memory of the killing; but see CALCRIM 3425, Related Issues.
CALJIC NOTE: See FORECITE F 8.47 n3.
F 626 Note 4 Availability Of Unconsciousness When Defendant Was Aware Before And After The Killing
Unconsciousness is available as a defense even though the defendant was aware of what he was doing immediately before and following the killing. (See People v. Wilson (1967) 66 C2d 749, 762; see also People v. Moore (1970) 5 CA3d 486, 492.)
CALJIC NOTE: See FORECITE F 8.47 n5.
F 626 Note 5 Negligence In Self-Intoxicating As Basis For Involuntary Manslaughter Instruction
People v. Ferguson (2011) 194 CA4th 1070, 1083-84 assumed arguendo that “negligence in self-intoxicating” to the point of unconsciousness could be the basis for instruction on involuntary manslaughter as a lesser included of implied malice vehicular murder notwithstanding PC 192(b)’s exclusion of “acts committed in driving a motor vehicle. . . .”
