Opinion Bank # O-246 People v. Ray (UNPUBLISHED OPINION)
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(A071891 [San Francisco County Superior Court No. 158987])
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Plaintiff and Respondent,
ROBERT E. RAY,
Defendant and Appellant.
(Relevant Portion Only)
A. Voluntary Intoxication Defense
Defendant contends the court’s instructions improperly negated the defense of voluntary intoxication. On that subject, the court began by instructing the jury pursuant to CALJIC No. 4.20: [Footnote 1] “The law provides that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. In the crimes charged [[Footnote 2]] — in the crime of 192(b), involuntary manslaughter, the fact the defendant was voluntarily intoxicated is not a defense and does not relieve him of responsibility for that crime.” After an unreported sidebar conference, the court continued the instructions with CALJIC No. 4.21: “In the crime of murder, of which the defendant is accused in count 1 of the information, a necessary element is the existence in the mind of the defendant of the specific intent to unlawfully kill another human being and the mental state of malice and deliberation, premeditation and willfulness for murder first. [¶] If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether a defendant had such specific intent or mental state. [¶] If from all the evidence you have a reasonable doubt whether the defendant formed such specific intent or mental state, you must find that he did not have such specific intent or mental state.”
Defendant contends the initial sentence of CALJIC No. 4.20, reciting the legal provision that no act is less criminal because the actor is voluntary intoxicated, essentially undermines CALJIC No. 4.21, which provides for the negation of specific intent in the case of voluntary intoxication. Trial counsel did object to the giving of CALJIC No. 4.20 on the ground that it would confuse the jury. Counsel proposed instead that the court give CALJIC No. 4.21.1. [Footnote 3] The court refused. Why the court did so is unclear. The use note to CALJIC No. 4.20 provides clear and substantial assistance on this point: “If there is evidence of voluntary intoxication and the crime requires a specific intent or state of mind, use CALJIC 4.21. [¶] If the trial includes crimes requiring both general and specific intent, or a particular mental state, use CALJIC 4.21.1. [¶] Do not use this instruction where the crime charged requires a specific intent or a particular purpose or motive. [Citations.]” (Italics added.)
CALJIC No. 4.20 contains a general principle of law found in Penal Code section 22, subdivision (a): “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition.” CALJIC No. 4.21 embodies an exception to that general principle, found in Penal Code section 22, subdivision (b), whereby evidence of voluntary intoxication may be considered to the extent it negates a specific intent or mental state. Our Supreme Court has held that the trial court should not instruct the jury as to the general principle in cases requiring a specific intent or mental state because of the potential confusion for the jury. (People v. Spencer (1963) 60 Cal.2d 64, 87.) CALJIC No. 4.21.1 was developed for cases involving charges of both general and specific intent crimes. Under CALJIC No. 4.21.1, the jury is clearly informed that the principle that evidence of voluntary intoxication does not reduce criminality is limited to general intent crimes and that, as an exception to the general rule, evidence of intoxication can be considered in relationship to specific intent crimes. The court here chose not to use CALJIC No. 4.21.1. Thereafter, the court erred in not specifically indicating that CALJIC No. 4.21 is an exception to the general rule set forth in CALJIC No. 4.20. (People v. Rivera (1984) 162 Cal.App.3d 141, 145.) [Footnote 4]
B. Involuntary Manslaughter Instructions
The court read CALJIC No. 3.30 as follows: “In the crime of 192(b), involuntary manslaughter, there must exist a union or joint operation of act or conduct and general criminal intent. [¶] To constitute general criminal intent, it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful.” (Italics added.) Defendant objects to this instruction on the ground that involuntary manslaughter resulting from voluntary intoxication is based upon criminal negligence (see CALJIC No. 8.47) and, therefore, does not involve intentionality as suggested by the instruction. Defendant contends he was guilty of involuntary manslaughter although there was no joint operation of act and mental state because: (1) his unconsciousness obviated any mental state at the time of the killing, and (2) his criminal negligence was established by the earlier act of voluntarily becoming intoxicated. Consequently, he contends CALJIC No. 3.30 misled the jury.
“Unconsciousness is ordinarily a complete defense to a charge of criminal homicide. (Pen. Code, § 26, subd. 5 [now subd. Four].) If the state of unconsciousness results from intoxication voluntarily induced, however, it is not a complete defense. (Pen. Code, §22.) Intoxication may so diminish a person’s mental capacity that he is unable to achieve a specific state of mind requisite to any offense; yet, if the intoxication is voluntarily induced, it can never excuse homicide. [Citation.] Thus, the requisite element of criminal negligence is deemed to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary manslaughter if he voluntarily procured his own intoxication. [Citation.]” (People v. Graham (1969) 71 Cal.2d 303, 316-317.) Thus, criminal responsibility for a killing committed while on is unconsciousness due to voluntary intoxication is based on neither specific nor general intent. Instead, a defendant’s liability in such circumstances arises from his criminal negligence. Defendant correctly asserts that CALJIC No. 3.30 was misleading. Indeed, the Attorney General does not argue to the contrary.
The Attorney General contends that any error occasioned by CALJIC No. 3.30 was harmless under the test of People v. Sedeno (1974) 10 Cal.3d 703, 721 (disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12), in which the factual question posed by the erroneous instruction was resolved against the defendant under other, proper instructions. The Attorney General argues that the jury’s verdict of second degree murder demonstrates that they rejected the notion that defendant’s intoxication negated malice, citing People v. Matta (1976) 57 Cal.App.3d 472, 483 and People v. Roberts (1975) 51 Cal.App.3d 125, 133, in which the defendants were convicted of second degree murder. However, both of those cases arose under the former law of diminished capacity and, in each, the jury was instructed on both voluntary and involuntary manslaughter. Thus, the failure to properly instruct on the relationship between diminished capacity due to voluntary intoxication and involuntary manslaughter could not have prejudiced the defendants in light of the juries’ verdicts of second degree murder and the finding of implied malice subsumed in those verdicts. Here, diminished capacity was not an issue, and the jury was given a choice from among only first degree murder, second degree murder, involuntary manslaughter, and acquittal. In light of erroneous instructions as to involuntary manslaughter, the verdict of second degree murder does not demonstrate that a factual issue was resolved against defendant under proper instructions. The only option between second degree murder and acquittal was involuntary manslaughter, and the instructions as to that option were faulty.
C. Analysis of Prejudice [Footnote 5]
Having concluded that the trial court erred in two different particulars, we must now consider whether either or both of those errors were prejudicial to defendant. As to each, the parties are unable to agree on the correct standard of review for prejudice. The standard most favorable to the judgement is that articulated in People v. Watson (1956) 46 Cal.2d 818, 836. Under Watson, the question is whether it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. Even applying that standard most favorable to the People, the combination of errors here is prejudicial. Unconsciousness due to voluntary intoxication was the only defense put forward by defendant. To mount that defense, defendant presented friends and family to testify to his long history of alcohol abuse. Two defense experts described the effect of such abuse on defendant and testified generally to the indicia of unconsciousness. One of those experts also opined that defendant was indeed unconscious at the time he killed Roberts.
The prosecutor argued extensively that defendant could not possibly have been unconscious when he committed the acts that caused Roberts’s death. [Footnote 6] The jury was instructed to accept the law as given to them by the court and not any conflicting version that might be articulated by counsel. Consequently, the argument of counsel is not determinative of prejudice. However, it is a factor to be considered when the jury expressed confusion over the legal definition of “unconscious” provided by the court. The prosecutor’s argument might have been construed to mean that, in light of the specific actions taken by defendant, he could not have been unconscious as a matter of fact. However, the argument could reasonably be interpreted to mean that, in light of those same actions, defendant could not have been unconscious as a matter of law.
Additionally, at the same time the jury asked for clarification of the term “unconscious,” they also asked for readback of Dr. Woods’s testimony regarding the definition of “substance-induced intoxication delirium.” Thus, the jury clearly struggled with the question of defendant’s consciousness at the time of the killing.
The reviewing court must look to the entirety of the instructions to determine the significance of an erroneous instruction: “Error cannot be predicated upon an isolated phrase, sentence or excerpt from the instructions since the correctness of an instruction is to be determined in its relation to the other instructions and in light of the instructions as a whole. [Citations.] Accordingly, whether a jury has been correctly instructed is not to be determined from a part of an instruction or one particular instruction, but from the entire charge of the court. [Citations.]” (People v. Wingo (1973) 34 Cal.App.3d 974, 979.) Here, the court’s instructions were flawed in two respects both pertaining to the central issue before the jury. The instructions failed to clearly set forth that voluntary intoxication is a defense to specific intent crimes such as second degree murder, and that involuntary manslaughter due to voluntary intoxication is based on criminal negligence and does not require intentional action. Based upon the combination of these errors, there is a reasonable probability an outcome more favorable to defendant could have resulted.
The Attorney General also argues the instructional error was harmless because the jury found that defendant had intentionally used a firearm. The jury was instructed as follows: “The term `used a firearm,’ as used in this instruction, means to display a firearm in a menacing manner, intentionally to fire it, or intentionally to strike or hit a human being with it.” Of these options, the intentional firing of the gun was the only one applicable to the facts before the jury. However, given the confusion presented by the instructional errors, it is difficult to say the jury made an informed decision that defendant acted intentionally when he fired the gun. Rather, it is more likely that once the jury concluded, based upon faulty instructions, that defendant was guilty of second degree murder they simply concluded he had used the firearm in the course of that murder.
The judgment is reversed.
Footnote 1: At the time of trial, the instructions discussed herein were found in either the bound volume or the pocket part to CALJIC’s fifth edition. They are now located in the sixth edition published in 1996.
Footnote 2: Here, the court misspoke. Involuntary manslaughter was not a charged offense but rather a lesser included offense to the charged murder.
Footnote 3: CALJIC No. 4.21.1, added in 1992, provides: “It is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of this condition. [¶] Thus, in the crime[s] of _____ charged in Count[s] _____, [or the crime of _____ which is a lesser thereto,] the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve defendant of responsibility for the crime. This rule applies in this case only to the crime[s] of _____ [.] [, and the lesser crime[s] of _____.] [¶] However, there is an exception to this general rule, namely, where a [specific intent] [or] [mental state] is an essential element of a crime. In that event, you should consider the defendant’s voluntary intoxication in deciding whether the defendant possessed the required [specific intent] [or] [mental state] at the time of the commission of the alleged crime. [¶] Thus, in the crime[s] of _____, _____, _____, charged in Count[s] _____, [or the lesser crime[s] of _____,] a necessary element is the existence in the mind of the defendant of [a] certain [specific intent[s]] [or] [mental state[s]] which is included in the definition of the crime[s] set forth elsewhere in these instructions. [¶] If the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not [the] defendant had the required [specific intent] [or] [mental state]. [¶] If from all the evidence you have a reasonable doubt whether the defendant had that [specific intent] [or] [mental state], you must find that defendant did not have that [specific intent] [or] [mental state].
Footnote 4: In similar circumstances, another court held that, given the totality of the instructions, it was not probable the jury was misled. (People v. McCoy (1984) 150 Cal.App.3d 705, 710-711.) According to that ruling, the giving of both CALJIC Nos. 4.20 and 4.21 without indicating the latter is an exception to the former was error but was harmless under the circumstances. As detailed below, we conclude the same error here when combined with other instructional errors was not harmless.
Footnote 5: Defendant also ascribes as error the court’s failure to inform the jury that a person can be unconscious even though ambulatory. A similar claim was rejected in People v. Clark (1993) 5 Cal.4th 950, 1020, in light of other instructions, which were also given here. Defendant suggests Clark is distinguishable because, shortly after deliberations began here, the jury asked the court to define “unconscious,” and to provide transcripts of both Dr. Woods’s testimony and the defendant’s statement to police. The court replied that it could not “by law give [the jury] a legal definition of the word `unconscious.’ Whatever there is is included in the instructions themselves with the assistance of testimony.” CALJIC 4.30, which was not given, contains the following language: “Unconsciousness does not require that a person be incapable of movement.” Commentary to the pattern instruction refer to applicable cases.
The Attorney General correctly points out that defendant did not request amplification of the instructions when the court responded to the jury’s question, and argues the point is waived.
It is troubling that the trial court inaccurately told the jury that the law prevented it from providing further legal definition of the term “unconscious,” particularly when helpful sources were readily at hand. We are mindful that the areas in which the court must instruct sua sponte or risk reversal are appropriately limited. The trial court should also be mindful of its obligation to assist the jury by properly instructing them on relevant issues of law, especially when the jury expresses difficulty with an essential aspect of the case. We need not inquire further whether the court’s conduct here constituted legal error because, for the reasons set out below, we conclude the other areas of confusion created by the court’s instructions require reversal.
Footnote 6: In his closing argument, the prosecutor argued: “Involuntary manslaughter is if instead of putting the gun next to her head, he got himself blind drunk, pointed that gun out the window and, without regard, just to celebrate, emptied the clip, fired off all the rounds in the gun, and one of those bullets happened to strike Linda Roberts, who at the time was walking on the street. That is involuntary manslaughter because he’s demonstrated negligence in his actions.” In his rebuttal argument, the prosecutor argued: “If that man was unconscious … I don’t know what the word means if he can do all that up to the shooting and everything he did after that shooting and claim that he was unconscious. Who was doing it? Some demon took over his body.”