Opinion
A128255
11-22-2011
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE STANCILL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C159933)
Defendant was convicted following a jury trial of second degree murder (Pen. Code, § 187, subd. (a)), with associated findings that he personally discharged a firearm and caused great bodily injury or death (§§ 12022.7, subd. (a), 12022.53, subd. (d)). He claims in this appeal that the trial court erred by admitting evidence of his gang affiliation and excluding defense evidence that he was previously shot in the presence of his friend. We conclude that the evidence of gang affiliation was relevant and not unduly prejudicial, and the proffered defense evidence of the prior shooting was properly excluded. In response to defendant's additional argument that the trial court was obligated to instruct the jury as requested by the defense on the lesser offense of involuntary manslaughter due to voluntary intoxication, we find that the requested instruction was not based on substantial evidence. We therefore affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF FACTS
On the evening of October 13, 2007, the murder victim, Greg Ballard, a senior at San Leandro High School, attended a party with friends at a residence at Sunnyside and 92d Avenue in Oakland. Ballard's close friend Darryl Tatmon was also at the party, smoking and selling marijuana. Tatmon testified that Ballard appeared at the party after dark, and was just "hanging" or talking with friends. Ballard was not drinking or taking drugs.
Defendant was present at the same party that evening. Before defendant arrived at the party, he spent much of the day with his friend Darnell Calvin. Defendant and Calvin were good friends and members of the "Hyfee Boyz Rap Group," which began "as rapping," but morphed into the "Hyfee Boyz" street gang that was "into" guns and violence. In the late afternoon, defendant and Calvin smoked marijuana, snorted powder cocaine, drank alcohol, and each "popped a half pill of ecstasy" at a residence occupied by Calvin's "family members" at 104th Avenue and E Street.
They proceeded to a nearby liquor store to purchase alcohol. Defendant displayed a handgun to Calvin that he kept in his pants pocket for protection. They purchased a half gallon bottle of gin and orange juice at the liquor store, then returned to the house to engage in further drinking.
Just before dark, defendant and Calvin walked to the party at Sunnyside and 92d Avenue, continuing to drink gin on the way there. Calvin "was high," and knew that defendant "was intoxicated after the booze." They both wandered around separately at the party, socializing with "a lot of people outside." Two other Hyfee Boyz were also at the party. Calvin did not observe either defendant or Ballard causing any trouble at the party. Calvin was acquainted with Ballard for many years, and "was cool" with him.
Tatmon testified that when he checked on Ballard he observed him talking with other people at the party who were the victim's "partners" and fellow football players. Tatmon also noticed defendant at the party. He was drunk, "out of his body," and urinating in front of people. Defendant's friends told him to "be cool."
Soon thereafter, Tatmon heard someone yell, "No, watch out. You tripping," followed by shots fired. Both Tatmon and Calvin testified at trial that they heard the shots, but did not see the shooting. Calvin made a statement to the police, however, that he "seen [defendant] shootin' the gun." As defendant fired the shots, he appeared "wobbly" and "drunk." According to Calvin's statement to the police, he and defendant were friendly with everyone at the party, and the shooting "just came out [of] nowhere."
After the "shots were fired," everyone "just started running." Calvin put his "head down" and ran toward 92d Avenue. Defendant was running behind him in the same direction; they were both drunk. As he ran defendant repeatedly yelled, "We out!"
After defendant and Calvin ran for about half a block, their friends drove by in a van. They jumped in the van as it proceeded toward 94th and Sunnyside.
Someone told Tatmon that the "person who shot" Ballard got in a van. He hastily obtained a gun from a friend, ran into the street, and fired five or six shots at the van as it drove away. He then returned to the driveway, where he found Ballard lying face down on the driveway. Ballard was transported to the hospital, where he died from a single gunshot that entered the right front side of the chest and passed through the left lung, heart and liver. Testing revealed that Ballard had no drugs or alcohol in his system.
Tatmon and others informed Ballard's mother that defendant killed her son, and she passed the information on to the Oakland Police Department. Sergeant Tony Jones, the primary homicide investigator in the case, testified that he received a picture from another officer of defendant, known as "Wheezy," who was associated with the Hyfee Boyz, and was considered a suspect in the case. Sergeant Jones then conducted a My Space search of the Hyfee Boyz website, which contained "a lot of photographs of the group." A photo of defendant, "flashing a gang sign," was on the Hyfee Boyz website. Sergeant Jones displayed photos from the Hyfee Boyz My Space website to Tatmon, who identified a photo of defendant as the one "who people were saying was the shooter."
On October 23, 2007, defendant was arrested in a stolen vehicle and taken to the homicide division of the police department for questioning by Sergeant Jones and another officer. Defendant initially stated that he was not acquainted with Ballard, and "didn't know anything about" the shooting. Defendant also denied that he was "a gang member or a Hyfee Boy." He blamed others for the shooting of Ballard. After the interview progressed for about two hours, defendant "just kind of sat in the back of the chair" and said, "I was hella drunk and I killed him." Defendant stated that he was conversing agreeably with Ballard, and "didn't know why he pulled his revolver out and shot him." Defendant had "no problems" with Ballard at all. Ballard didn't do "nothin' " to cause defendant "to shoot him." Defendant thought he must have been "trippin'." He just "blanked out," pointed the gun in Ballard's direction, and "started shootin'." Defendant stated that he "didn't realize what [he] was doin'." He was just "bein' drunk and silly." He shot three or four times at Ballard in slow succession from a distance of eight or nine feet. After the first shot Ballard began running away. Defendant was "too drunk" to know if any of the shots hit Ballard.
A tape recording of the interview was played for the jury, and a transcript of the recording was provided.
Defendant also stated that after the shooting he entered a van occupied by Calvin and other friends. They were very angry with him for the shooting, and confiscated his bottle of gin. Defendant's friends told him they would no longer associate with him, particularly if he was drinking.
DISCUSSION
I. The Admission of Evidence of Defendant's Affiliation with the Hyfee Boyz.
Defendant argues that the trial court erred by admitting evidence of his "association with the Hyfee Boyz, who were described as a rap group that had become a gang with a proclivity for gun violence." He claims that the evidence "served no relevant purpose and was unduly prejudicial," by creating the inference the he "was a person of bad character with a disposition to commit violent crimes." Defendant points out that the prosecution did not charge a gang offense or enhancement, and did not present evidence that the shooting of Ballard was "gang motivated or gang related." He maintains that without any foundational showing of a "gang-related motive to the homicide," the gang evidence was irrelevant and "encouraged the jurors to rely improperly on character evidence" to find him guilty of the murder, in violation of "his constitutional due process right to a . . . fair trial."
We acknowledge that evidence of gang affiliations must be carefully evaluated and circumspectly admitted. "California courts have long recognized the potential prejudicial effect of gang evidence. As a result, our Supreme Court has condemned the introduction of such evidence 'if only tangentially relevant, given its highly inflammatory impact.' [Citations.]" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.) " 'Gang evidence should not be admitted at trial where its sole relevance is to show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense.' [Citation.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 223.)
"Nonetheless, evidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative." (People v. Samaniego, supra, 172 Cal.App.4th 1148, 1167.) "Consequently, gang evidence may be relevant to establish the defendant's motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. [Citations.] 'Evidence of the defendant's gang affiliation — including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like — can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]' [Citation.] Nonetheless, even if the evidence is found to be relevant, the trial court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury." (People v. Albarran, supra, 149 Cal.App.4th 214, 223-224.)
To prevail on his argument that he was denied a fair trial and due process of law by the admission of gang evidence, defendant "must show that the admission of the evidence was erroneous, and that the error was so prejudicial that it rendered his trial fundamentally unfair. [Citation.] ' "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must 'be of such quality as necessarily prevents a fair trial.' [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose." [Citation.] "The dispositive issue is . . . whether the trial court committed an error which rendered the trial 'so "arbitrary and fundamentally unfair" that it violated federal due process.' " ' [Citation.]" (People v. Garcia (2008) 168 Cal.App.4th 261, 275; see also People v. Partida (2005) 37 Cal.4th 428, 439.)
Our review of the trial court's admission of the gang evidence is limited. "A trial court's admission of evidence, including gang testimony, is reviewed for abuse of discretion. [Citations.] The trial court's ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice." (People v. Avitia (2005) 127 Cal.App.4th 185, 193; see also People v. Memory (2010) 182 Cal.App.4th 835, 858.)
At the outset, we need to acknowledge that the law of evidence does not disfavor the admission of relevant testimony that makes the government's case and evidentiary burdens comprehensible and logical which otherwise would seem inexplicable. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.) We find that the gang evidence was relevant to several interrelated material issues in the case. The murder of Ballard was a perplexing and, on the surface, singularly motiveless act of mindless violence. Nothing in the evidence adduced at trial, even defendant's admission, provided any possible comprehensible reason for the shooting. The prosecution was thus presented with the task of attempting to explain the seemingly inexplicable. The gang evidence had some probative value to establish a motive for the senseless murder. (See People v. Leon (2010) 181 Cal.App.4th 452, 462; People v. Samaniego, supra, 172 Cal.App.4th 1148, 1168.) "The People are entitled to 'introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.' [Citation.]" (Gonzalez, supra, at p. 1550.) We recognize that no evidence indicated the murder was committed to further the objectives of the Hyfee Boyz gang, but the prosecutor justifiably argued that the shooting was a product of defendant's affiliation with a gang that glorified guns and violence. No other evidence explained the shooting, so the gang testimony was at least somewhat relevant to prove motive, along with intent and premeditation, which were elements of the crime that were vigorously contested by the defense.
The gang evidence was also necessary to clarify the nature and progression of the police investigation that culminated in the identification of defendant as the shooter. To add credibility and persuasiveness to the path of the investigation that was followed to defendant, the use of gang evidence, particularly the gang website, was beneficial.
Further, the credibility of the prosecution's evidence of the extrajudicial statement given by Calvin was enhanced by establishing his and defendant's affiliation with the Hyfee Boyz gang. Calvin's testimony at trial was significantly altered in favor of the defense from his pretrial statements to the police. He was insistent at trial that he did not see the shooting and was not angry with defendant immediately thereafter, whereas in his prior statement to the police he declared that he witnessed defendant "shootin' the gun" at Ballard, and was incensed at defendant for the shooting. He also related in his statement to the police that defendant exclaimed, "Fuck them niggas, man," when he reached the van after the shooting, but in his trial testimony denied that defendant said anything in the van. The connection of Calvin and defendant to each other, and to the Hyfee Boyz gang, provided a reason for Calvin to repudiate part of his extrajudicial statements at trial, due to either loyalty or fear of reprisal, and thus advanced the trustworthiness of his prior statement to the police. (See People v. Gonzalez (2006) 38 Cal.4th 932, 946.) Also, in United States v. Padilla (9th Cir. 2004) 387 F.3d 1087, 1094, expert testimony on the issue of bias among gang members and the willingness of junior members to take the "fall" for other members was relevant in the case and the probative value outweighed any prejudice that might result.
The gang evidence, while prejudicial, did not outweigh its probative value. " ' "Unless the dangers of undue prejudice, confusion, or time consumption ' "substantially outweigh" ' the probative value of relevant evidence, a section 352 objection should fail. [Citation.] ' "The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]" [Citation.] [¶] The prejudice that section 352 ' "is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." [Citation.]' [Citation.]" (People v. Scott (2011) 52 Cal.4th 452, 491.)
Evidence of defendant's affiliation with the Hyfee Boyz was not disproportionately inflammatory, particularly compared to the charged offense. The gang testimony did not include any detail that may have exacerbated the incendiary impact of the evidence. The prosecution offered neither evidence of criminal acts committed by the gang, nor expert testimony that described the functions and objectives of the Hyfee Boyz. Also, " '[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.' [Citations.]" (People v. Gonzalez, supra, 126 Cal.App.4th 1539, 1550; see also People v. Martinez (2003) 113 Cal.App.4th 400, 413.) "Accordingly, when evidence of gang activity or affiliation is relevant to motive, it may properly be introduced even if prejudicial." (People v. Garcia, supra, 168 Cal.App.4th 261, 275.)
The " 'admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court's decision exceeds the bounds of reason. [Citation.]' [Citation.]" (People v. Gonzalez, supra, 126 Cal.App.4th 1539, 1550.) We find that the gang evidence was not unduly prejudicial under the circumstances, and conclude that the trial court did not abuse its discretion by admitting the evidence.
II. The Exclusion of Defense Evidence.
Defendant also objects to the trial court's exclusion of evidence offered by the defense that he was "shot less than a year prior to the fatal shooting in this case." During his direct testimony Calvin was asked by the prosecution about the gun defendant showed him on their walk to the liquor store. Calvin testified that defendant produced the gun from his pants pocket and said, "We're safe." Calvin agreed, and explained, "there's a lot of problems out there in the streets with gangs getting shot, so that's why I feel safe around the guns." Calvin added that he had been shot four times. On cross-examination defense counsel asked Calvin if he was present when defendant was shot in January of 2007. The trial court sustained the prosecution's relevance objection. Defendant complains that the inquiry was relevant to corroborate defendant's "statement to [the] police that the reason he was carrying a loaded gun on the night of the fatal shooting was because he felt he might need to defend himself, not because he wanted to threaten, injure or kill anyone."
We reject defendant's contention for several reasons. First, the question asked by defense counsel was not whether defendant had been shot, but whether Calvin was present when it happened. Whether Calvin was "with" defendant "when he got shot" is not relevant to defendant's state of mind or the reason he was carrying a firearm on the night of the shooting.
Moreover, the relevant evidence of the fact that defendant had been shot was adduced by the question alone and without Calvin's testimony. Defendant, in his statement to the police, was asked why he carried a gun to the party. He responded, "Scared for my life . . . from when I got shot" on January 29, 2007. Defendant added in the interview that he reported the shooting to the police, but did not know who shot him. The prosecution did not dispute that defendant had been shot in the recent past. During closing argument defense counsel emphasized that the evidence defendant had been shot in January of 2007 demonstrated he "armed himself for protection," rather than to intentionally shoot someone at the party. The jury was thoroughly made aware of evidence that defendant had been shot, and the impact of the incident on his mental state.
Also, defendant acknowledged that he was not threatened by anyone at the party and was not even arguing with the victim when the shooting occurred. He "just started shootin' " for no reason. Thus, while defendant may have professed that he possessed a gun for protection, nothing in the evidence supported an argument that he acted in self defense, either reasonably or unreasonably, or in response to some act of provocation, so as to mitigate murder to voluntary manslaughter. (See People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1445-1446.) Defendant did not even claim that he shot Ballard in response to some form of hallucination or delusion that negated premeditation and deliberation. (See People v. Padilla (2002) 103 Cal.App.4th 675, 678.)
Exclusion of cumulative evidence that Calvin was with defendant when he was shot, even if relevant, was harmless to the defense under any prejudicial error standard. (See People v. Arceo (2011) 195 Cal.App.4th 556, 579; People v. Williams (2009) 170 Cal.App.4th 587, 613.)
III. The Trial Court's Refusal to Give an Instruction on the Lesser Offense of Involuntary Manslaughter.
Defendant's final contention is that the trial court erred by refusing to instruct the jury on the "lesser included offense of involuntary manslaughter based on unconsciousness from voluntary intoxication." He maintains that proof of his consumption of drugs and alcohol, along with his statement that he "blanked out" and "didn't know" why he shot Ballard, constituted evidence of his unconscious state "due to voluntary intoxication." He therefore argues that the trial court was required to give instruction on "unconsciousness from voluntary intoxication" that reduced the offense from murder to involuntary manslaughter. The trial court's refusal to do so, he further argues, violated his due process rights and mandates reversal of the murder conviction.
The trial court's duty to instruct on lesser included offenses is well established. "A criminal defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and an erroneous failure to instruct on a lesser included offense constitutes a denial of that right." (People v. Huggins (2006) 38 Cal.4th 175, 215; see also People v. Cash (2002) 28 Cal.4th 703, 736.) "The sua sponte duty to instruct, and a fortiori, the responsibility to provide instructions on request, in connection with a lesser offense . . . exists when there is substantial evidence to support the defendant's culpability of the necessarily included crime." (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016; see also People v. Avena (1996) 13 Cal.4th 394, 424.) " ' "[S]uch instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." ' [Citation.] The classic formulation of this rule is expressed in People v. Webster[ (1991)] 54 Cal.3d 411, 443: 'When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so.' " (People v. Huggins, supra, at p. 215; see also People v. Ochoa (1998) 19 Cal.4th 353, 422; People v. Berryman (1993) 6 Cal.4th 1048, 1081; People v. Ceja (1994) 26 Cal.App.4th 78, 85.)
"In making the determination whether to instruct on a lesser included offense, the 'trial court should not . . . measure the substantiality of the evidence by undertaking to weigh the credibility of the witnesses, a task exclusively relegated to the jury.' [Citation.] ' " 'The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon.' " ' [Citations.] As an obvious corollary, if the evidence is minimal and insubstantial the court need not instruct on its effects." (People v. Springfield (1993) 13 Cal.App.4th 1674, 1680.) "Speculation is insufficient to require the giving of an instruction on a lesser included offense." (People v. Mendoza (2000) 24 Cal.4th 130, 174; see also People v. Moore (2011) 51 Cal.4th 386, 409; People v. Koontz (2002) 27 Cal.4th 1041, 1085-1086; People v. Pham (1993) 15 Cal.App.4th 61, 67.) "[T]he court is not obliged to instruct on theories that have no evidentiary support." (People v. Joiner (2000) 84 Cal.App.4th 946, 972; see also People v. Breverman (1998) 19 Cal.4th 142, 162.) Our high court has stressed that " 'unsupported theories should not be presented to the jury.' [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 40.) "On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense." (People v. Cole (2004) 33 Cal.4th 1158, 1215; see also People v. Mendoza, supra, at Pp. 174-175; People v. Sinclair, supra, 64 Cal.App.4th 1012, 1017.)
Looking at the duty to instruct on the lesser involuntary manslaughter offense in the present case, "A trial court must instruct the jury '. . . on involuntary manslaughter based on unconsciousness' whenever 'there is evidence deserving of consideration that the defendant was unconscious due to voluntary intoxication.' [Citations.]" (People v. Turk (2008) 164 Cal.App.4th 1361, 1371-1372, fn. omitted.) "Unconsciousness does not mean that the actor lies still and unresponsive. Instead, a person is deemed 'unconscious' if he or she committed the act without being conscious thereof. [Citation.]" (People v. Haley (2004) 34 Cal.4th 283, 313.) " 'Thus, unconsciousness " 'can exist . . . where the subject physically acts in fact but is not, at the time, conscious of acting.' " [Citations.]' [Citation.]" (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1083.)
Without doubt the evidence proved that defendant was voluntarily intoxicated to a profound degree. However, the evidence fails to show the second element required to compel the lesser included voluntary manslaughter instruction: that defendant's intoxication rendered him unconscious. Defendant admitted in his statement, without contradiction, that he was aware of the volitional act of shooting Ballard. Additional evidence definitively negates lack of consciousness. Defendant precisely recalled how he reached the party, who he was with, where he was standing, and what he was doing immediately before the shooting. He was aware that he brought a black .38-caliber or .357 revolver to the party, which he kept in his pants pocket. Defendant admitted that he pointed the gun directly at Ballard before he shot. He remembered that he fired three or four shots from a particular distance away from the victim. His awareness of the shooting is further demonstrated by his flight immediately thereafter. He also recalled that his friends were incensed at him for the shooting. Finally, defendant did not present any expert testimony that his ingestion of drugs and alcohol may have rendered him unconscious.
Nothing in the record provides substantial evidentiary support for the requested instruction that at the time of the shooting defendant was so intoxicated that he was rendered unconscious. (People v. Halvorsen (2007) 42 Cal.4th 379, 418-419; People v. Abilez (2007) 41 Cal.4th 472, 516; People v. Roldan (2005) 35 Cal.4th 646, 717; People v. Haley, supra, 34 Cal.4th 283, 312-313; People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Ochoa, supra, 19 Cal.4th 353, 423-424.) Defendant's statement that he "blanked out," and his professed inability to comprehend or convey a reason for the shooting, may indicate that intoxication clouded his judgment and caused him to act irrationally, but does not, in light of the remaining evidence, suggest he was unconscious due to voluntary intoxication when he committed the offense. (People v. Rogers (2006) 39 Cal.4th 826, 888; People v. Ochoa, supra, at p. 424, People v. Carlson (Oct. 11, 2011, G043833) ___ Cal.App.4th ___ [2011 Cal.App. Lexis 1378, *13]; People v. Ferguson, supra, 194 Cal.App.4th 1070, 1083-1084.) The trial court properly declined to instruct the jury on involuntary manslaughter. (People v. Roldan, supra, at p. 717; People v. Haley, supra, at pp. 312-313; People v. Ferguson, supra, at p. 1085; People v. Turk, supra, 164 Cal.App.4th 1361, 1379.)
We observe that in a very recent case the court concluded: "[T]he 1995 amendments to section 22 preclude a defendant from relying on his or her unconsciousness caused by voluntary intoxication as a defense to a charge of implied malice murder." (People v. Carlson, supra, ___ Cal.App. ___[*14]; see also People v. Turk, supra, 164 Cal.App.4th 1361, 1375; People v. Martin (2000) 78 Cal.App.4th 1107, 1114.) In light of our finding that the record did not warrant giving the proposed instruction, we need not discuss the continued propriety of a jury instruction that when a defendant, in an unconscious state as a result of voluntary intoxication, kills another human being without express malice, the resultant crime is involuntary manslaughter.
Accordingly, the judgment is affirmed.
Dondero, J.
We concur:
Marchiano, P. J.
Margulies, J.