Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH42390
Kline, P. J.
Torrell Allen appeals from a conviction of attempting to commit a lewd act upon a child. He contends the trial court erred in failing to instruct the jury sua sponte on the definition of involuntary intoxication as it applied to the facts of the case. He additionally contends his conviction must be reversed due to ineffective assistance of counsel in that his attorney failed to request jury instructions defining involuntary intoxication and directing the jury to consider the effect of intoxication and of mental disorder in determining whether appellant had the specific intent required for the offense. We affirm.
Statement of the Case
Appellant was charged by information filed on March 6, 2007, with committing a lewd act upon a child (Pen. Code, § 288, subd. (a)). It was alleged that he had a prior felony conviction for unlawful sexual intercourse (§ 261.5, subd. (c)). Appellant pled not guilty and denied the allegation.
All further statutory references are to the Penal Code unless otherwise indicated.
The prosecution’s case was presented to the jury on May 21, 2007; the defense did not present evidence. After deliberating for approximately five hours, the jury found appellant guilty of the lesser included offense of attempted lewd act upon a child. On June 19, the court sentenced appellant to prison for the middle term of three years.
Appellant filed a timely notice of appeal on June 28, 2007.
Statement of Facts
M.R. testified that she and appellant had a 10-year “off and on” relationship during which they lived together for five or six months and had two children. In February 2006, their daughter R.A. was seven years old and their son T.A. was two years old. M.R. and the children were living in Grass Valley and appellant in Hayward. Appellant and M.R. had broken up about a year before and had seen each other two or three times during that year; they talked on the phone “sporadically,” mostly about the children, who M.R. wanted to maintain a relationship with appellant.
On February 3, 2006, M.R. and the children came to Hayward to spend “family time” with appellant. On Friday evening, the family had dinner and stayed at a motel; M.R. slept in one bed with the children and appellant slept in the other bed. They spent the day together on Saturday, and in the evening returned to the motel room and watched televisioN.M.R. got into bed with the children on either side of her but could not fall asleep because T.A. was “wiggling around.” She got into the other bed, leaving R.A. in the middle of the first bed and T.A. on the side closest to M.R.. Appellant, who had not yet gone to bed, lay down with T.A.
The next thing M.R. remembered was being startled awake by a loud noise. She saw appellant standing near the front door wearing a T-shirt and boxer briefs, but not the long thermal underwear pants he had been wearing before M.R. fell asleep. The light was on in either the entryway or the bathroom. M.R. asked appellant what the noise was and he said someone was knocking; she asked who and he said he did not know whether it was at the door or on the wall.
Looking over at the other bed, M.R. saw R.A. with her back to M.R. and her pants and underwear pulled down so her buttocks was exposed. T.A. was on the other side of R.A. M.R. asked appellant what R.A. was doing and he said he did not know. M.R. went over to her daughter and saw something white spread “along the crack of her bottom,” over her anus to the entrance of her vagina. It looked like it had been rubbed because “the outside was thicker than the inside.” The substance smelled like raspberry lotioN.M.R. asked appellant how it got there and he said, “ ‘Oh, I was just rubbing lotion on my hands and some got on her.’ ” M.R. did not believe him and asked again, and appellant said, “ ‘Oh, I was about to rub [R.A.]’s back with lotion.’ ” At this point, it “hit [M.R.] what had happened” and she started to cry. Appellant started to cry as well, saying “ ‘I’m sorry, I’m sorry.’ ” M.R. asked appellant if he had any lotion on him and he said “Yes.” She saw a large pump top bottle of lotion on the nightstand between the beds that she had not seen before and that she had not brought to the motel. M.R. pulled down appellant’s underwear, grabbed his flaccid penis and smelled it, smelling the same scent she had smelled on R.A. M.R. asked appellant if he had put his penis in R.A.’s “butt” and he said “no.” She asked if he was going to “jack off” while he was touching R.A. and he said, “hmm, no, but that was going to be his intention.”
Appellant asked if M.R. was going to call the police and she said she did not know. He said something like, “ ‘No, I’m sick. I have a problem, but I don’t know what it is’ ” and said he was going to see a doctor. He asked if the police would call what happened “fondling” and she told him it was called “molestation.” M.R. asked if appellant had thought he was touching her and he said “no,” he knew it was R.A. Appellant said maybe he had done it “because he hadn’t been with a woman in over a year” and M.R. was “giving him the cold shoulder.” During their conversation, appellant did not continue crying but seemed scared. M.R.’s questioning was “kind of firm” but quiet, so as not to wake the children. At one point when she was sobbing, appellant asked her to be quiet, saying he did not want R.A. to wake up and did not want her to “ ‘know about this.’ ” He said he was going to send M.R. some sort of insurance letter, which she took to mean he was going to harm himself. After a time, appellant lay down on the empty bed. M.R. sat up for a couple of hours, then started falling asleep and lay down in the other bed, next to R.A.
During their conversation, appellant never said that he had been unconscious and had no idea what he had done with R.A., or that he might have done it because of medication he was taking. Over the course of their relationship, appellant had never told M.R. he had been unconscious or blacked out. She knew he had scoliosis but did not know what medications he took for it and had never seen appellant take pain medication for his back. She did not see him take any medications or see him in possession of any prescription medication during the stay in Hayward, and did not know whether he was taking any. M.R. did not see appellant consume any alcoholic beverages or take any drugs on Saturday.
When M.R. woke up Sunday morning, appellant was showering. He gathered his things, told R.A. he had to leave and loved her, and left. T.A. was still asleep. Appellant did not take the bottle of lotioN.M.R. asked R.A. if she felt okay but did not tell her what had happened or check her in any way. She did check the toilet for blood after R.A. used it and did not see any. She called the police about 45 minutes after appellant left the motel room and gave a detailed statement to Officer Martinez when he arrived. Martinez had M.R. wait outside while he spoke with R.A. At the officer’s suggestion, M.R. took both children to the hospital for rape examinations. The doctor told M.R. there was no sign of penetration. She was present during the examination and observed that R.A.’s vagina appeared normal.
A couple of days later, M.R. and R.A. went to the Hayward Police Department and were interviewed separately by Officers Guimaraes and Luevano. Officer Guimaraes asked M.R. to participate in a “pretext phone call” to appellant which the police would record. The officers told M.R. to try to be calm, and that they would give her questions to ask appellant. Officer Guimaraes was “pretty stern” with M.R., telling her she needed to cooperate and prove she was protecting her children or they would be taken away from her. The officer who had interviewed R.A. told M.R. the girl had slept through the incident and did not know anything about it.
M.R. reached appellant at his friend’s house and they talked for about half an hour. Some of the questions she asked were from the police and some were her own. The police directed M.R. to say a number of things to appellant that were not true, including that R.A.’s vagina was red and swollen, that she had a tear in her vagina, and that R.A. knew what had happened and had told another little girl. The tape of the telephone conversation was played for the jury.
The transcript of the tape reflects that at the beginning of the conversation appellant said, “What makes you think, why did I wake up and just jump and cut the light on, that tells you I didn’t even know what I was doing. I never acted like this. I don’t know what I was doing.” M.R. asked how he could not know and appellant said, “Why, why would I just jump up and then . . . [¶] . . . I didn’t even know myself. I cried all night. I don’t what I’m; who I am anymore.” M.R. asked, “Did you fuck her? Were you going to fuck her?” Appellant said “no” and M.R. asked what he was thinking. He replied, “I don’t know. It’s something came over me. That’s why, like I said, when I jumped up the first thin[g] I did was cut the lights on. They didn’t even know who I was at that point.” Appellant said he didn’t know whether he was sleeping, he just knew “something didn’t happen that was supposed to happen or something happen . . . .” He told M.R., “the problem is somewhere in me. I need to go find what’s going with me.”
M.R. asked if appellant put his penis on R.A.’s vagina and he said “[n]o,” then said, “I don’t remember everything, [M.R]. I just remember someone knocked, I jumped up, cut the lights on and that’s all I can remember. I know I did something wrong, bad.” Asked whether he could not remember because he was “doing drugs,” appellant said “[n]o.” Appellant said he did not know why he got the lotion and lay next to R.A.: “I remember rocking the baby to sleep. Next thing I know I was someone else. I jumped up and cut the lights on. I have no clue.”
M.R. asked if appellant was masturbating and he said, “That’s what I’m thinking I was doing because I had my, my shorts and stuff still on.” Asked if he was “just rubbing her butt and her vagina with lotion” appellant said, “I don’t even know how far I went with that.” Appellant said he had been thinking about “what made me just jump up and snap back to myself; why would I cut the lights on,” and M.R. acknowledged, “I could tell you were freaked out . . . .” Appellant said he was scared, “cried all in my sleep when I left” and “rode the bike not knowing who I was.” He said he had “set up another appointment to see a doctor on Calaroga.” When M.R. asked what kind of doctor, appellant said, “(Unintelligible) analyze all my medicines I’m taking and my sleep pattern.”
M.R. reminded appellant he had suggested he might have done what he did because he had not been with a woman for so long. He responded, “Yeah, I’m thinking that’s why I’m trying to give myself reason . . . I don’t know. I think I’m trying to make excuses for who I am, I just became. I think I’m trying to account for it and I don’t know how. I gave you the best analogy a human could give; not knowing if I just made it up or if it’s true. You know, I do feel weird, yeah, because I haven’t been with no one in so long. And I do feel that I’m not, you’re not attracted to me in that way no more. But can I use that as a real reason, probably not. So yes I’m afraid of who I, and what I done, yes. And I don’t know if I’m making any sense to you. You want me to give you an answer right now and I can’t. I need to find out what’s taking place in my mind. Am I sick? I don’t think I am. Did something go wrong with me? Yes. Do I know what it is? No. This was the first time that I experienced something like this where I’m out of my own self and I snap out of it. Now will it happen again? I’m hoping not. Will I, will I trying to find out what’s going on with me? Yes. You know, there’s a specialist that’s on Calaroga. That’s who I’m trying to get in to see. He’s an Iranian. [¶] . . . [¶] And he specializes in that; sleep disorders and, and, and mixtures of medications.”
M.R. told appellant that she looked at R.A.’s “privates” after he left and they were “really red,” and asked, “[w]hat if, you know, some of your sperm got on her?” Appellant said, “I doubt if that happened, [M.R]. [¶] . . . [¶] Because I don’t remember taking it like that.” M.R. repeated that R.A. was “really red and swollen” and he said, “You know, it could be just something that the lotion, I don’t know, but I didn’t go there with that. That I do know.” M.R. insisted, “your fingers had to have went inside of her,” and appellant said, “No. I didn’t put nothing. [¶] . . . . [¶] My fingers never went there.” M.R. asked how the lotion got there and appellant said, “I guess I did.” He said he did not remember but “[t]hat’s the case I wouldn’t have cleaned up everything and not wake up freaked out and cut the lights on.” Appellant acknowledged that he had lotion on his penis, which he said was “[f]rom my hand.”
M.R. told appellant she had been debating whether to call the police and he said that would ruin his life and R.A.’s, suggesting M.R. would be doing it out of “hate” because he would suffer for something he would never understand. Appellant talked about how he realized something was wrong but could not figure it out and M.R. told him touching his daughter had nothing to do with a sleep disorder but was sexual. He acknowledged this and said this was what he was trying to figure out: “[M]e myself would not go there. Why did I go there? That’s the question I’m asking myself. That’s the things that I’m, I’m trying to seek this doctor for. He specializes in these areas.” Appellant insisted he was “not in that category” of men who molest children and children did not “turn [him] on.” M.R. brought up having asked appellant if he was going to “jack off” and he said, “I said probably so. [¶] . . . [¶] I was trying to justify, kind of give a reason of what was going on without not clarity. [¶] . . . [¶] And then I said until I figure out who, what’s going on with me, keep, keep her out of this and let, you know, (unintelligible) be the one that will come up and say hey this is what daddy did . . . .”
When M.R. told appellant that R.A. had told a friend what happened and the friend’s mother had asked about it, and asked what would happen if the neighbors went to the police, appellant said he would take it one day at a time, that he was sorry “from the bottom of his heart” for “who I became at that time” and that he would “honor anything you tell me to do.” M.R. said R.A. had said he touched her privates with his finger, telling appellant to be honest if it was a mistake. He said, “Yes. I truly believe it is, [M.R.], I truly, I don’t. I can’t, see I can’t even express it. I can’t.” M.R. asked, “Did your fingers touch her vagina?” Appellant said, “I don’t know, sweetheart, I can’t remember. I can’t.” She pressed, “Did you touch her butt? Her butt crack?” He responded, “I don’t know. I just remember grabbing the bottle. I remember you talking to me. I remember jumping up and then I ran a couple lights on and that’s all I can remember.” As M.R. continued to ask how appellant could not know what he was doing, he said, “You keep questioning me over and over. You either have to believe or you don’t believe me. If that’s the case why would I just jump up and cut the lights on and, and expose everything? [¶] . . . [¶] It’s like why would I murder someone and then call the cops with the weapon in my hand and say something. I don’t know what happened. Unless something just wasn’t right.”
At this point M.R. told appellant he had never had black outs and he said, “No. I have had black outs this year, well last year.” She pushed him to be honest because she needed to know the truth, saying “I can’t even look at my daughter without having all these ideas in my head.” Appellant acknowledged that M.R. had a right to think something happened and to ask questions, and that he could not make her believe him if she didn’t, but told her, “You know in your heart that I’m telling the truth.” She said she was going to take R.A. to the doctor and would not be able to lie to them, and appellant told her he could not argue if she felt she had to do this and “[i]f you feel that I need to be put away for 30 years then that’s why I need to go.” She asked if he could trust himself around children and he said, “I know I can because, like I said, I’m frightened. I am terrified of, of what took over me. So am I more conscience? Yes. Do you think I need to walk a (unintelligible) line? I don’t think so. I need to just be knowing that something took place and keep that in my mind.” In response to further questions from M.R., appellant agreed that there was lotion all over R.A., that he had lotion on his hands and that he had lotion on his penis but “it wasn’t that, that much.” M.R. asked, “And did you penis her? Did you touch her with it?” Appellant replied, “No. Not I can recall. Everything, I was still half dressed.”
Appellant was interviewed by Officers Guimaraes and Luevano on February 7, 2006. He told the officers that he had suffered for the last 10 years from the “worst degree” of rheumatoid arthritis, that makes people “crippled over, hands all crunched up.” He also had a muscle condition that “no one can put their finger on. My muscles will just sever apart.” Appellant said, “Maybly (SP) because of my bones, the muscles are tryin’ it’s best to straighten out my bones. And because of that it causes severe crampin’ and spasms so I can’t breathe. You know it gets awful lot in which the, red cell. And then the blood rushes from my head down to the part to fix it, and I go unconscious” and wake up with a fever. Appellant said this would happen about three times a year. For the rheumatoid arthritis, appellant said he took “the strongest medicine they got on earth [¶] . . . [¶] Ibuprofen mixed with liquid Tylenol with Codeine’s with Vicodin’s, two shots of Morphine.” He also took Demerol and “all types of stuff, I can’ even pronounce half of ‘em.” Appellant said he sometimes took these medications “in one cocktail or four different shots. Sometimes it’s just one and then I go back and get another, it depends on the Doctor at the time.” The medications were for pain, and some for relaxing muscles. This statement was not presented to the jury; it was used for a Miranda hearing before the trial. (Miranda v. Arizona (1966) 384 U.S. 436.)
Discussion
I.
Appellant’s defense at trial was that he did not consciously molest his daughter but rather suddenly awoke to find himself in a situation he could not explain and did not understand. “Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge. (§ 26, class Four; People v. Coogler (1969) 71 Cal.2d 153, 170 . . .; People v. Newton (1970) 8 Cal.App.3d 359, 376 . . .; see also § 20 [to constitute a crime there must exist a joint operation of act and intent].) To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist ‘where the subject physically acts but is not, at the time, conscious of acting.’ (Newton, at p. 376.)” (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) By contrast, unconsciousness due to voluntary intoxication can not provide a complete defense because of the defendant’s culpability in becoming so intoxicated, although it may negate the specific intent required for a particular crime. (People v. Velez (1985) 175 Cal.App.3d 785, 791.)
At appellant’s request, the trial court instructed the jury, pursuant to CALCRIM No. 3425, “The defendant is not guilty of the crime charged or its lesser if he acted while legally unconscious. Someone is legally unconscious when he is not conscious of his actions. Someone may be unconscious even though able to move. [¶] Unconsciousness may be caused by a blackout, or involuntary intoxication, or sleepwalking. [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when he acted. If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was conscious. If, however, based on all the evidence, you have a reasonable doubt that he was conscious, you must find him not guilty.”
Appellant now contends his conviction must be reversed because the trial court failed to provide the jury, sua sponte, with a definition of the term “involuntary intoxication.” He contends that in the absence of this definition, the jury would not have known he could not be found guilty if at the time of the offense he was unconscious due to unexpected intoxication from prescription medications he was taking.
“As a general rule, in the absence of a request for amplification, the language of a statute defining a crime or defense usually is an appropriate basis for an instruction. If a statutory word or phrase is commonly understood and is not used in a technical sense, the court need not give any sua sponte instruction as to its meaning. If, however, a word or phrase is used in a technical sense differing from its commonly understood meaning, clarifying instructions are appropriate and should be given on the court’s own motion. (People v. Bland (2002) 28 Cal.4th 313, 334 . . .; People v. Smithey (1999) 20 Cal.4th 936, 981 . . .; People v. Estrada (1995) 11 Cal.4th 568, 574-575 . . . .)” (People v. Rodriguez (2002) 28 Cal.4th 543, 547.)
Appellant argues that the court should have defined involuntary intoxication both because the term does not have an unambiguous meaning and because it has a technical definition peculiar to the law. He maintains the jury would not understand that the term could apply if he took medication that unexpectedly caused his unconsciousness even if he ingested the medication voluntarily.
“[I]nvoluntary intoxication is sometimes referred to as ‘innocent’ intoxication. (Perkins & Boyce, [Criminal Law (3d ed. 1982)] p. 1001.) The defense is allowed where the defendant has been without fault. ‘Involuntary intoxication, it appears, was first recognized as that caused by the unskillfulness of a physician or by the contrivance of one’s enemies. Today, where the intoxication is induced through the fault of another and without any fault on the part of the accused, it is generally treated as involuntary. Intoxication caused by the force, duress, fraud, or contrivance of another, for whatever purpose, without any fault on the part of the accused, is uniformly recognized as involuntary intoxication’ (Annot., [When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge (1976)] 73 A.L.R.3d 195, fns. omitted, italics added; see also Annot., Effect of Voluntary Drug Intoxication Upon Criminal Responsibility (1976) 73 A.L.R.3d 98.)
“In accordance with this view, courts have allowed the defense of involuntary intoxication based on the ingestion of an unlawful drug where the defendant reasonably believed he was consuming a lawful substance or where the unlawful drug was placed without defendant’s knowledge in a lawful substance. (See People v. Scott [(1983)] 146 Cal.App.3d [823,] 826-827 [PCP surreptitiously placed in punch at family reunion-type party]; People v. Carlo (1974) 46 App.Div.2d 764 [361 N.Y.S.2d 168] [defendant took hallucinogenic pill in reasonable belief it was aspirin or lawful tranquilizer]; Commonwealth v. McAlister (1974) 365 Mass. 454 [313 N.E.2d 113], cert. den. 419 U.S. 1115 [95 S.Ct. 794, 42 L.Ed.2d 814] [coffee spiked with drug that produced reaction consistent with LSD]; People v. White (1970) 131 Ill.App.2d 652 [264 N.E.2d 228] [drug put in defendant’s beer without his knowledge]; People v. Penman (1915) 271 Ill. 82 [110 N.E. 894] [intoxicating pills reasonably believed to be breath perfume].)” (People v. Velez, supra, 175 Cal.App.3d at p. 797.)
People v. Chaffey (1994) 25 Cal.App.4th 852, 856, explained, “A person whose intoxication is not voluntary is relieved from liability because of excusable mistake. ‘What prevents the intoxication from being voluntary in these cases of fraud is not the trickery of the other person but the innocent mistake of fact by the one made drunk, and an actual ignorance of the intoxicating character of the liquor or drug has the same effect whether the mistake is induced by the artifice of another or not. [Fn. omitted.]’ (Perkins on Criminal Law (2d ed. 1969) p. 895.)” In Chaffey, the defendant was convicted of driving under the influence of an intoxicating drug after she took an overdose of a prescription medication, intending to commit suicide, the medication rendered her unaware of her actions and she drove her car while in this condition. There was evidence that the label warned the medication could cause drowsiness. The trial court found the intoxication was voluntary because it was predictable that the defendant would become sleepy and “something would happen.” Chaffey affirmed the conviction because the evidence supported the trial court’s conclusion, although it noted that the evidence could have supported a conclusion that the defendant’s intoxication was involuntary because she did not know, and a reasonable person would not have known, that an overdose of the medication could cause intoxication. (Id. at p. 857.)
Cases from other jurisdictions have found the defense of involuntary intoxication applicable where at the time of the offense a defendant voluntarily was taking prescription medication without awareness that it might have an intoxicating effect (People v. Hari (Ill. 2006) 843 N.E.2d 349, 359-360; see Commonwealth v. Darch (Mass.Ct.App. 2002) 767 N.E.2d 1096, 1100; People v. Caulley (Mich.Ct.App. 1992) 494 N.W.2d 853, 858), or even regardless of the defendant’s awareness of potential side effects, if the medication was taken in the prescribed dosage (State v. Gardner (Wisc.Ct.App. 1999) 601 N.W.2d 670, 675; Brancaccio v. State (Fla.Dist.Ct.App. 1997) 698 So.2d 597, 598-600; Shurbet v. State (Tex.Ct.App. 1982) 652 S.W.2d 425, 428; Sluyter v. State (Fla.Dist.Ct.App. 2006) 941 So.2d 1178, 1180-1181.)
Appellant argues that, in California, the critical factor for determining that intoxication is involuntary rather than voluntary is whether the defendant assumed the risk of intoxication: If the defendant was aware of the medication’s potential for causing intoxication, the defense of involuntary intoxication is not available. (People v. Chaffey, supra, 25 Cal.App.4th at p. 857; CALJIC No. 4.23 [“Intoxication is involuntary when it is produced in a person without [his] [her] willing and knowing use of intoxicating liquor, drugs or other substance and without [his] [her] willing assumption of the risk of possible intoxication.”].) Appellant makes this point to support his contention that involuntary intoxication has a particular meaning in the law and therefore required the trial court to provide the jury with its definition. The point, however, focuses us on the fundamental problem with appellant’s argument: There was no evidence in the present case to which the jury could have applied the instruction appellant claims it should have been given.
As appellant recognizes, a trial court’s duty to instruct sua sponte applies only if there is substantial evidence to support the instruction. “ ‘[T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury’s understanding of the case.’ (People v. Carter (2003) 30 Cal.4th 1166, 1219 . . . .) In addition, ‘a defendant has a right to an instruction that pinpoints the theory of the defense [citations]; however, a trial judge must only give those instructions which are supported by substantial evidence. [Citations.] Further, a trial judge has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence.’ (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386 . . . .) ‘A party is not entitled to an instruction on a theory for which there is no supporting evidence.’ (People v. Memro (1995) 11 Cal.4th 786, 868 . . . .)” (People v. Roldan (2005) 35 Cal.4th 646, 715, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
While appellant is correct that the evidence need only be sufficient to support an “inference” (see People v. Barnett (1998) 17 Cal.4th 1044, 1145), the inference must be based on more than speculation. “ ‘[S]peculation is not evidence, less still substantial evidence.’ ” (People v. Waidla (2000) 22 Cal.4th 690, 735, quoting People v. Berryman (1993) 6 Cal.4th 1048, 1081.) A trial court does not err in refusing even a requested jury instruction where the theory it presents is based on speculation rather than substantial evidence. (See People v. DePriest (2007) 42 Cal.4th 1, 50-51 [no substantial evidence that offense was grand theft rather than robbery]; People v. Valdez (2004) 32 Cal.4th 73, 116 [speculation insufficient basis for instruction on lesser included offense]; People v. Lewis (2001) 26 Cal.4th 334, 370[defendant not entitled to accomplice instructions where theory that witness was accomplice was speculative].)
The cases of which we are aware finding instructions on involuntary intoxication should have been given involve evidence, expert and otherwise, concerning what medication the defendant was taking, when it was taken in relation to the offense, the known side effects of the medication and the defendant’s awareness of them. (People v. Hari, supra, 843 N.E.2d at pp. 359-360 [evidence that defendant was taking prescription Zoloft and nonprescription Tylenol PM at time of shooting, expert testimony he suffered involuntary intoxication from combination of these two medications which deprived him of capacity to appreciate criminality of conduct]; Brancaccio v. State, supra, 698 So.2d at pp. 598-600 [expert testimony that Zoloft defendant was taking at time of offense caused adverse effects impairing his impulse control and ability to form intent required for offense]; People v. Caulley, supra, 494 N.W.2d at p. 856 [expert testimony that Halcion defendant was taking at time of offense exacerbated prior mental illness to cause psychosis].) Conversely, Commonwealth v. McDermott (Mass. 2007) 864 N.E.2d 471, 493, held an instruction on involuntary intoxication was not required where there was no evidence that the defendant took the medication on the day of the offense or that prior ingestion of the medication would have had an effect on him that day, and an expert witness testified the defendant had been exceeding the prescribed dose prior to the day of the offense. State v. Gardner, supra, 601 N.W.2d at page 675, upheld the trial court’s exclusion of expert testimony on effect of defendant’s prescription medication on ability to tell right from wrong because the defense offer of proof included no evidence of the duration of the medication’s effects, the amount prescribed or amount the defendant actually was taking.
Here, the jury was presented with no evidence whatsoever about what medications appellant was taking, when he took them, what their effects and side effects might be, whether he had experienced intoxication from them in the past or had been warned about the possibility of such effects, whether he took the medications as prescribed or exceeded the prescribed dosage, or whether he had in fact taken the medications on the night of the offense. The sole basis in the evidence for the theory of involuntary intoxication by prescription medication was appellant’s statement during the pretext phone call that he had made an appointment with a doctor to “analyze all my medicines I’m taking and my sleep pattern.” This statement may have been sufficient to support an inference that appellant took prescription medication, but it was clearly not sufficient to support an inference that appellant took a prescribed dose of medication that could cause unconsciousness by intoxication without knowing such an effect might occur.
The only evidence before the jury of appellant’s medical condition was M.R.’s testimony that she knew appellant had scoliosis. There was no evidence about how this condition affected appellant or what he did to relieve any symptoms it caused him. Prompted by a juror asking whether appellant was taking pain medication on the night of the incident, the court and prosecutor questioned M.R. about appellant’s use of medication. She testified that she did not see appellant take any medication or see him in possession of prescription medication during the weekend in Hayward, he did not tell her on the night of the incident that he might have done what he did because of medication he was taking, and during the years of their relationship, she had never seen him take painkillers for his back. On this record, the trial court did not err in failing to define the term involuntary intoxication for the jury.
Appellant additionally argues that his attorney’s failure to ask the trial court to instruct on involuntary intoxication by prescription medication amounted to ineffective assistance of counsel. Under familiar principles, “Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 . . .; In re Wilson (1992) 3 Cal.4th 945, 950 . . . .) A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694 . . .; In re Jones (1996) 13 Cal.4th 552, 561 . . . .)” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
In light of the state of the evidence, appellant has not demonstrated any deficiency in his attorney’s failure to request instructions on involuntary intoxication. As discussed above, there was no evidence to which the jury could have applied the instruction appellant urges his attorney should have requested. In fact, appellant may have received more benefit from the instructions as given. On the evidence presented, the only way the jury could have concluded appellant was involuntarily intoxicated at the time of the offense would have been by impermissible speculation. The jury was clearly aware of the defense theory that appellant was unconscious due to medication he was taking, as one of the jurors specifically asked whether he was taking pain medication that night and M.R. was questioned about appellant’s use of medication in response. Defense counsel suggested in closing argument, with reference to the pretext phone call, “He’s searching for answers. Maybe it’s his medication. He’s going to see a doctor about sleep disorders.” Two days later, when he had considered what had happened, he was going to have his medications analyzed and see a doctor who specialized in sleep disorders.” The prosecutor pointed out that there was no evidence what medication appellant was taking or what effects they might have. An instruction defining involuntary intoxication to clarify that the jury could find appellant was involuntarily intoxicated from voluntarily taking prescription medication would necessarily have focused the jury on the deficiencies in the evidence supporting appellant’s theory—the absence of evidence as to whether appellant took medication on the night in question, what medication he took, in what dosage, and with what effects.
Appellant’s claim of ineffective assistance of counsel is limited to arguments concerning jury instructions. He makes no claim that his attorney should have presented additional evidence at trial.
Appellant also contends he received ineffective assistance of counsel because his attorney did not request jury instructions on the effect of voluntary or involuntary intoxication, or a mental disorder, on the development of specific intent. Appellant argues that even if the jury did not accept his defense of unconsciousness, it should have been told that intoxication or a mental disorder could raise a reasonable doubt whether he had the specific intent required for a conviction of committing or attempting to commit a lewd act.
This contention, too, fails on the record. The only suggestion of the possibility appellant could have been intoxicated on the night of the offense was his comment in the pretext call referring to medications he was taking. As described above, there simply was no evidence he took any medication on the night of the offense, much less of a type or in an amount that could result in intoxication. (People v. Garceau (1993) 6 Cal.4th 140, 197 [evidence that defendant used cocaine frequently was insufficient to require instruction on voluntary manslaughter absent evidence he used drug at time of offense]; People v. Cox (1990) 221 Cal.App.3d 980, 989 [voluntary intoxication instruction must be supported by evidence of manner in which intoxicating substance affects mind of user].) The jury could only have speculated as to the impact an undetermined amount of an unspecified medication might have had on appellant’s mental processes. (People v. Cox, supra, at pp. 989-990.) Similarly, appellant’s statement in the phone call that he had had blackouts in the last year provided no basis for a conclusion, based on anything other than speculation, that a mental disorder caused him to have a blackout at the motel that night. As the evidence did not support the instructions appellant claims should have been given, trial counsel’s performance was not ineffective for failure to request them.
The judgment is affirmed.
We concur: Haerle, J. Lambden, J.