Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F03811
ROBIE, J.
After a jury found him guilty of killing his cellmate, defendant Josef Jensen appeals his convictions for second degree murder and malicious aggravated assault by a life prisoner. He raises claims of instructional error.
Finding any instructional errors harmless, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A
The Prosecution’s Case
Shortly before 1:00 a.m. on February 12, 2002, inmates at Folsom State Prison began banging on their cell doors to alert correctional officers that there was a “man down.” Correctional Officer Lawrence Smith responded to the cell housing the injured inmate, Willie Murphy. Defendant was Murphy’s cellmate and told Correctional Officer Smith that his “homey” was “not breathing,” and he “need[ed] medical help.” Murphy was lying on the floor face up with blood on him. The cell was in disarray: clothing and other personal items were on the floor, the floor was “real wet,” and the cell “smelled very heavily of alcohol.”
Murphy was taken to the infirmary where prison officials and medical personnel tried unsuccessfully to revive him. He was pronounced dead at 1:48 a.m.
Coroner Mark Super determined Murphy died of asphyxiation by strangulation that could have taken up to five or six minutes. Murphy’s autopsy also revealed he had a swollen and bruised face, “numerous bruises and abrasions about the extremities,” the most prominent being bruises on the back of the knuckles and right hand, cracked and broken fingernails, and a few bruises and abrasions on his legs. His blood alcohol content was 0.16.
Defendant had blood on him and smelled very strongly of alcohol. Near his clavicle, he had one “superficial puncture wound,” three scratches measuring three to four centimeters, and a hematoma measuring four to five centimeters. Near his bicep muscle, he had a hematoma measuring four to six centimeters. On his knees was some redness. On the back of his neck were seven “very minor” scratches. On his shoulder blade were “multiple scratches, contusions, [and] soft-tissue injury.” On his hands and knuckles were “superficial . . . avulsions and discoloration.” He “had no major injuries of any kind” and no wounds or bruises to or around his face or nose.
A hematoma is a mass of clotted blood that forms in a tissue, organ, or body space as a result of a broken blood vessel. (Merriam-Webster’s Collegiate Dict. (11th ed. 2006) p. 579, col. 2.)
B
The Defense
The evening before Murphy died, Murphy and defendant had been drinking “white lightening,” which was a highly distilled version of “pruno,” an alcoholic drink they had brewed illicitly to celebrate Murphy’s birthday. They started drinking around 4:30 p.m. and continued until around 11:00 p.m.
Sometime after they stopped drinking, defendant and Murphy had a “disagreement,” but defendant could not recall about what. Murphy took off defendant’s glasses and punched him. There was “an exchange of blows” and wrestling. At some point, they “decided to quit.” But while defendant was standing at his locker, Murphy hit him again. Defendant did not remember choking Murphy. He never wanted Murphy to die and did not intend to kill him.
DISCUSSION
I
Any Error In Instructing Pursuant To The Modified Version Of CALCRIM No. 625 Given Here Was Harmless To Defendant’s Murder Conviction
Defendant contends that his conviction for second degree murder must be reversed because CALCRIM No. 625, as given here, failed to inform jurors that they could consider his voluntary intoxication in deciding whether he acted with express malice aforethought.
In California, a defendant may introduce evidence of voluntary intoxication to negate the mental state required for certain crimes. (Pen. Code, § 22, subd. (b).) Specifically, a defendant may introduce “[e]vidence of voluntary intoxication . . . on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.” (Ibid.) CALCRIM No. 625 as given here omitted the term “express malice aforethought” from the list of mental states that voluntary intoxication can negate. Rather, the instruction listed “intent to kill.” Based on this omission, defendant contends instructional error.
All further statutory references are to the Penal Code unless otherwise indicated.
CALCRIM No. 625 reads as follows: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill[,] [or] [the defendant acted with deliberation and premeditation[,]] [[or] the defendant was unconscious when (he/she) acted[,]] [or the defendant _________________ <insert other specific intent required in a homicide charge or other charged offense> .]
Defendant points out that a defendant who intentionally and unlawfully kills nonetheless lacks malice when he kills in unreasonable self-defense -- that is, in the unreasonable but good faith belief in having to act in self-defense. (See People v. Rios (2000) 23 Cal.4th 450, 460.) In defendant’s view, by instructing the jury that his voluntary intoxication could be considered in deciding whether he acted with “intent to kill” rather than with “malice aforethought,” the trial court denied him the opportunity to have the jury consider the effect of his intoxication on his belief in the need to defend himself.
The problem with defendant’s argument is that even assuming the instruction was incorrect, the error would not warrant reversal of his second degree murder conviction under any prejudice-based standard of review. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Watson (1956) 46 Cal.2d 818, 836; Pen. Code, § 1259.)
The jury found defendant guilty of second degree murder without specifying the theory on which it based the verdict. There was only one theory on which it could have based this verdict that might have been tainted by an incorrect instruction on voluntary intoxication. That is, defendant might have killed Murphy because he believed he was in imminent danger of being killed or suffering great bodily injury and believed the immediate use of deadly force was necessary to defend against the danger. Even if the instruction would have foreclosed the jury from considering defendant’s voluntary intoxication in determining whether he held either of these beliefs, the problem with this theory is the dearth of evidence to support it. To be sure, there was evidence to support a finding that defendant intended to kill Murphy based on how he died (asphyxiation by strangulation), despite defendant’s testimony that he did not intend to kill Murphy. But the evidence that defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury and that immediate use of deadly force was necessary to defend against the danger was lacking even when taking into account defendant’s intoxication. Defendant testified that the initial fight between him and Murphy was over because they both had “decided to quit.” But while defendant was standing at his locker, Murphy hit him again. Defendant did not describe this assault in any detail and the wounds he was left with after all the fighting (not just the second assault) were superficial. Although, as defendant points out, the cell was small and there were immovable objects inside, it would be speculation to conclude that given the situation, even considering his voluntary intoxication, defendant actually believed he was in imminent danger of being killed or suffering great bodily injury and that immediate use of deadly force was necessary to defend against the danger. For this reason, we conclude that any error in failing to correctly instruct the jury on the application of voluntary intoxication to express malice aforethought did not prejudice defendant.
Given our analysis, it is irrelevant the constitutional basis on which the instructional error is premised or whether, as defendant contends, “arguments of counsel added to the prejudice.”
II
Any Error In Instructing Pursuant To The Modified Version Of CALCRIM No. 625 Given Here Was Also Harmless As To Defendant’s Assault Conviction
Based on the instructional error alleged in his first argument, defendant contends his conviction for malicious aggravated assault by a life prisoner must also be reversed because an element of that crime is “malice aforethought.” (§ 4500.) For the same reason we found lack of prejudice with respect to defendant’s conviction for second degree murder, we so find with respect to defendant’s conviction for malicious aggravated assault by a life prisoner.
Section 4500 reads in full: “Every person while undergoing a life sentence, who is sentenced to state prison within this state, and who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death or life imprisonment without possibility of parole.”
III
The Failure To Instruct On The Lesser Included Offense Was Not Prejudicial
Defendant contends the court prejudicially erred in failing to instruct the jury on assault by means of force likely to produce great bodily injury, which is a lesser included offense to malicious aggravated assault by a life prisoner. (See People v. Noah (1971) 5 Cal.3d 469, 477-479.) The People do not seem to disagree that an instruction on the lesser included offense should have been given, but they argue that any error was not prejudicial. We agree with the People, but not for the reasons they state.
The effect of the failure to instruct on a lesser included offense is tested under the “Watson standard.” (People v. Breverman (1998) 19 Cal.4th 142, 178, citing People v. Watson, supra, 46 Cal.2d at p. 836.) Under Watson, the court’s failure to instruct on a lesser included offense is harmless if it was not reasonably probable that the jury would have found the defendant guilty of the lesser offense, but not the greater. (See Breverman, at pp. 176-178.) This test places a burden on the defendant to demonstrate prejudice, a burden defendant here has not met.
Defendant makes no argument based on the evidence presented as to why the jury would have found him guilty of the lesser included offense had it been instructed that it could do so. The closest defendant comes to such an argument is his position that a properly instructed jury might have found him guilty only of the lesser offense because his voluntary intoxication would have negated express malice aforethought. The problem with such an argument is that the jury just as likely could have found defendant guilty of the greater offense based on implied malice, a theory “for which evidence of voluntary intoxication could not be considered.” (People v. Timms (2007) 151 Cal.App.4th 1292, 1302.) For this reason, defendant has not demonstrated a reasonable probability that the jury would have found him guilty of the lesser offense, but not the greater.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., RAYE, J.
“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.
“You may not consider evidence of voluntary intoxication for any other purpose.”
The modified version of CALCRIM No. 625 given here reads as follows: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation.
“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. You may not consider evidence of voluntary intoxication for any other purpose.”