Opinion
E050386
08-03-2011
THE PEOPLE, Plaintiff and Respondent, v. WALTER RENE CIFUENTES, Defendant and Appellant.
R. Clayton Seaman, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.Nos. SWF027130 & SWF028234)
OPINION
APPEAL from the Superior Court of Riverside County. Bernard J. Schwartz, Judge. Affirmed in part; reversed in part and remanded.
R. Clayton Seaman, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Walter Rene Cifuentes appeals from his conviction of spousal battery (Pen. Code, § 273.5, subd. (a); count 1); criminal threat (§ 422; count 2); dissuading a witness with force or threat of force (§ 136.1, subd. (c)(1); count 3); misdemeanor brandishing a weapon (§ 417, subd. (a)(1); count 4); and misdemeanor vandalism (§ 594, subd. (b)(2)(A); count 5)). Defendant contends structural error occurred when he was denied his right to jury findings as to an out-on-bail allegation under section 12022.1. The People concede error, and we will therefore reverse the true finding on the special allegation and remand for further proceedings. Defendant also contends the trial court erred when it refused to instruct on voluntary intoxication as to counts 2 and 3. We find no merit to his contention.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
A. Counts 2 through 5
In the evening of December 11, 2008, Murrieta Police Department Officer Heather Grissom responded to a call of a domestic disturbance at the home of defendant's mother, Lucrecia Garcia. When Officer Grissom arrived, other officers were already outside talking to defendant. Officer Grissom entered the house and saw a damaged faucet. Garcia pointed out a butcher knife, which she said defendant had swung at her.
Officer Grissom testified that Garcia said she had argued with defendant about defendant's unemployment, his drinking beer, and his association with gang members. Defendant became angry, picked up a knife, and damaged the faucet. When Garcia told defendant she was not afraid to call the police, he said, "I'll do this to you if you call the police." Defendant swung his knife at Garcia, then slashed the heads off figures on a statue of the Last Supper. Defendant then swung the knife at Garcia again. Eventually, defendant turned his back on her, and she grabbed the knife away from him. Garcia chased defendant out of the house and told her daughter, Marili Knight, to call the police.
Officer Grissom testified that Garcia never said defendant had used his hands to break the statue. Garcia told the officer she was afraid of defendant because of his association with gang members, and Garcia believed defendant would make good on his threats. The officer offered Garcia a protective order, and she accepted.
Officer Grissom arrested defendant. She did not notice any injuries to his hands, and he did not complain of any injuries to his hands. Defendant claimed Garcia had tried to hit him with a flashlight. He never mentioned he had broken the statue with his hands. He smelled of alcohol but was responsive to the officer's questions, did not slur his words, did not stumble, and did not have any problem walking.
At trial, Garcia testified that defendant had broken the statue with his hand, not with a knife. She had not been afraid of defendant, but she was afraid something would happen to him on the street. She testified they had not argued about his association with gang members, she had not told Officer Grissom that defendant had grabbed a knife, or that defendant had swung a knife at her. She denied that defendant had threatened her.
Knight testified that she had been upstairs during the incident. When she came down, defendant was already outside. She did not remember if she saw defendant drinking that night, but she knew he had been drinking for days before the incident. Moreover, he was slouching, and he stood upright when he was sober.
A few days before March 6, 2009, defendant came to Knight's room and threatened her, saying, "I'll kill you and I'll cut you open," and "I'm going to gut you and cut your baby's throat like it's cutting . . . butter." Knight was frightened and believed defendant, but she was afraid to call the police. Jane Doe, defendant's girlfriend, came out of the bathroom and pulled defendant away.
Jane Doe testified that she had been outside on December 11, 2008, when she heard defendant and Garcia arguing in Spanish. Doe did not understand Spanish, so she did not know what the argument was about. She went upstairs, and when she came back down, defendant was "hitting things off the [fireplace] mantle" with his hand. She did not see a knife in his hand. Defendant then went outside. On cross-examination, Doe admitted defendant had called her from jail and told her to say she had not seen him with a knife. On redirect, she testified that defendant was glad she had never seen a knife, so he told her to "stick with that."
Defendant testified in his own behalf. He stated that on December 11, 2008, he had been in the garage drinking with his brother-in-law. He went inside to eat dinner and got into an argument with Garcia when she complained about his drinking and told him to get a job. Defendant denied they had argued about gangs. Defendant became angry and broke the kitchen sink faucet. He then started knocking items off the mantel with his hands. Defendant denied that Garcia had told him she was not afraid to call the police or that she had chased him out of the house. He admitted he had broken the statue but claimed he had done so with his hands, not with a knife. He denied he had threatened Garcia with a knife or had even seen the knife that night. He also denied any association with gangs. Finally, he denied that he threatened Knight or her child.
B. Count 1
Doe testified that on March 19, 2009, in the morning, she and defendant, who were then living together at Garcia's house, had an argument in their bedroom. Defendant hit her in the forehead with the back of his hand. She was momentarily stunned, and defendant struck her again under her arm. They continued arguing, and defendant kicked her on her legs and hit her face at least two more times. She denied that she had stumbled and hit her head on the headboard of the bed.
Defendant's mother and other family members came in, and Doe gathered some of her things and left. She called the police, who took photographs of her bruises. The photographs, which were introduced into evidence, showed a lump on her forehead and a cut on her face. Doe testified she still had a knot on her forehead and a visible bruise under her eye more than a month after the incident.
Defendant testified that he and Doe had both been "high on meth" that day, and he had also smoked marijuana and had drunk malt liquor. He became jealous when he saw Doe texting someone, and they argued when she refused to show him her cell phone. The argument escalated, and Doe came up behind him and started punching him in the back. He told her to get off him and swung back; his hand made contact with her face. He sat on an ottoman in pain because his shoulder had become dislocated and he was trying to "pop it in." Doe was still trying to get at him; she was unclothed and wrapped in a blanket, and she kept stumbling. Garcia came in the room to tell them to be quiet, and defendant went to a neighbor's house to cool off. When he returned, he saw Doe leave with a backpack. He did not see any injuries to her face. He testified that her injuries had occurred when she stumbled in the blanket and hit her head on the footboard of the bed. He denied punching her in the face.
Officer Grissom testified that when she arrested defendant at Garcia's house, he appeared intoxicated. Defendant did not tell the officer that he was injured, that his shoulder was dislocated, or that Doe had hit him. He said Doe had inflicted her own injuries to get him arrested.
C. Uncharged Misconduct
Doe testified that on March 19, 2009, she and defendant had argued, and he had kicked her on the shin and ankle. She did not call the police because she believed they would take both her and defendant to jail.
Doe testified that in February 2009, defendant had choked her. His brother-in-law pulled defendant off her. Defendant denied choking her.
III. DISCUSSION
A. Right to Jury Trial on Special Allegation
Defendant contends structural error occurred when he was denied his right to jury findings as to the special allegation under section 12022.1. The People concede error, and we accept the People's concession as well founded.
Before trial, the court mentioned a chambers discussion about a jury waiver on the allegation and stated that if the jury found defendant guilty, the court would make a determination on the allegation at the close of trial. Defense counsel stated he would discuss the matter with defendant. After the jury rendered its verdict on the substantive offenses and was excused, defendant waived time for a determination of the special allegation until sentencing. Before the sentencing hearing, the trial court took judicial notice of defendant's bail bond and found the allegation true.
A defendant has a federal and state constitutional right to a jury trial on a sentence enhancement allegation. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. 1, § 16; People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326.) Waiver of that right requires a personal and express waiver, and denial of the right is a structural error requiring reversal. (People v. Collins (2001) 26 Cal.4th 297, 311.) The record does not reflect that the trial court took defendant's express and personal waiver of his right to a jury trial. We will therefore reverse the true finding on the out-on-bail allegation and remand the matter to the trial court.
B. Refusal of Instructions on Voluntary Intoxication
Defendant contends the trial court erred when it refused to instruct on voluntary intoxication as to counts 2 and 3, criminal threats and dissuading a witness, respectively.
1. Standard of Review
We independently determine the sufficiency of the evidence to support a voluntary intoxication instruction. (See People v. Parson (2008) 44 Cal.4th 332, 350, fn. 8.)
2. Additional Background
At trial, defendant's counsel requested the court to instruct the jury with CALCRIM No. 3426. The trial court stated it was "not inclined" to give that instruction, "due to the absence of such evidence as it relate[d] to specific intent crimes, mainly . . . [Penal Code sections] 422 and . . . 136." Defense counsel argued that "some of the testimony that was presented, there was evidence of my client in the forensic alcohol [sic], although the word[], 'intoxication,' was not used, so we would request it and submit." The trial court stated it believed there was evidence of intoxication only as to count 1, spousal battery, which is not a specific intent crime, and the trial court therefore declined to give the requested instruction. The next day, defense counsel renewed the request based on statements that had been made to the 911 operator. The trial court noted there was only a "passing reference" to alcohol and to the fact that defendant had been drinking but no evidence of quantity and no evidence from either responding officer that defendant was actually intoxicated. The trial court therefore denied the request.
3. Analysis
The trial court must instruct the jury on the general principles of law "closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." (People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on another ground in People v. Breverman (1998) 19 Cal.4th 142, 148-149.) Upon request, a trial court must instruct on a particular defense when there is substantial evidence to support the defense. (People v. Wickersham (1982) 32 Cal.3d 307, 324, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 201.) Substantial evidence supports a jury instruction "if it is 'sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' [Citation.]" (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.)
Count 2, criminal threat (§ 422) and count 3, dissuading a witness with force or threat of force (§ 136.1, subd. (c)(1)), are specific intent crimes. To commit the crime of criminal threat, the defendant must intend that his statement be understood as a threat and that it be communicated to the victim. (People v. Fierro (2010) 180 Cal.App.4th 1342, 1347-1348.) To commit the crime of intimidating a witness, the defendant must have the specific intent of dissuading a witness from testifying. (People v. Young (2005) 34 Cal.4th 1149, 1211.) Voluntary intoxication may negate the existence of a specific intent. (See, .e.g., People v. Williams (1997) 16 Cal.4th 635, 677.)
"[A] defendant is entitled to an instruction on voluntary intoxication 'only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's "actual formation of specific intent."' [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 715, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The mere fact that the defendant may have been drinking before committing a crime does not establish intoxication or require the giving of an instruction on intoxication. (People v. Turville (1959) 51 Cal.2d 620, 633634, disapproved on another ground in People v. Morse (1964) 60 Cal.2d 631, 638.) Rather, to be entitled to an instruction on voluntary intoxication, the defendant must show not only that he consumed intoxicating substances, but also that "he became intoxicated to the point he failed to form the requisite intent . . . ." (People v. Ivans (1992) 2 Cal.App.4th 1654, 1661.) For example, in People v. Reyes (1997) 52 Cal.App.4th 975, the court held it was reversible error for the trial court to exclude evidence of the defendant's mental state and to refuse an instruction on voluntary intoxication in the defendant's trial for receiving stolen property. (Id. at p. 986.) The defendant had testified he was intoxicated with drugs when he was found with the stolen property, and he could not remember where he had found the items. The trial court excluded his proffered expert evidence of numerous mental disorders, including schizophrenia, borderline personality disorder, and cognitive deficits "'that might be identified as dementia . . . .'" (Id. at pp. 980-981, 985-986.)
Here, the record contains the following evidence of defendant's intoxication: Knight telephoned 911 to report that defendant was drunk and was arguing and kicking cars in the street. Garcia testified that defendant had been drinking heavily and told Officer Grissom the same. Officer Grisson interviewed defendant and could tell he had been drinking, although he was not intoxicated to the extent he was unable to care for himself. She could smell alcohol on his breath, but he had a steady gait and he did not slur his words. Knight testified she knew defendant was drunk because he had been drinking for days, and he was slouching rather than standing upright as he does when he is sober. However, she had not seen defendant drinking that night. Defendant testified he had been drinking through the night, and he did not remember everything he had said to the police that night because he was "pretty drunk."
As noted, to be entitled to an instruction on voluntary intoxication, the defendant must show not only that he was intoxicated, but also "that voluntary intoxication had [an] effect on [his] ability to formulate intent." (People v. Williams, supra, 16 Cal.4th at pp. 677-678.) In that case, the court found the evidence insufficient to require a voluntary intoxication instruction when a witness testified that the defendant was "'probably spaced out'" on the morning of the killings, and that the defendant had told the police he was "'doped up'" and "'smokin' pretty tough'" around the time of the killings. (Id. at p. 677.)
Here, we conclude the evidence was insufficient to support an instruction on voluntary intoxication—there was simply no evidence that defendant was intoxicated to the point where he was unable to formulate specific intent. (People v. Williams, supra, 16 Cal.4th at pp. 677-678; People v. Ivans (1992) 2 Cal.App.4th 1654, 1661 [Fourth Dist., Div. Two].)
IV. DISPOSITION
The true finding on the allegation under section 12022.1 is reversed and the matter is remanded for further proceedings on that allegation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.