Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCS185111, Esteban Hernandez, Judge.
McDONALD, J.
A jury convicted defendant Armando Cordova of two counts of second degree murder (Pen. Code, § 187, subd. (a)), one count of attempted murder (§§ 664/187, subd. (a)), one count of attempted voluntary manslaughter (§§ 664/192, subd. (a)), and two counts of assault with a firearm (§ 245, subd. (a)(2)). The jury also found true a series of special allegations regarding gun use and great bodily injury appended to the various counts. On appeal, Cordova asserts the court erroneously instructed the jury on relevancy of the evidence of his voluntary intoxication to his guilt of the charged offenses.
All statutory references are to the Penal Code unless otherwise specified.
In Cordova's opening brief, he also argued the court's sentence was erroneous because a gun use enhancement was stayed rather than stricken. However, he recognized that our Supreme Court's decision in People v. Gonzalez (2008) 43 Cal.4th 1118 resolved that issue adversely to him and has therefore withdrawn that argument.
FACTS
A. Prosecution Evidence
In May 2004 Cordova was living in Chula Vista with two of his friends, Kris Ebbert and Aliso Moriarty. On May 29, 2004, they held a party in honor of Ebbert's birthday.
Cordova was consuming alcohol at the party. He appeared increasingly agitated and belligerent as the night progressed. For example, he was angered when a woman to whom he was attracted ignored him and, when he saw her talking to an African-American man, Cordova uttered, "fucking nigger." In another instance, Jenna Carlson was talking to another partygoer when Cordova approached from behind and kicked Carlson in the buttocks, and when she demanded to know why, Cordova replied, "Because I had to." Cordova was also angered when Ebbert broke Cordova's marijuana pipe, and Cordova told Ebbert he would make Ebbert pay for the damaged pipe. Around 2:00 a.m., when Cordova and Jessica McIntire went to a store to purchase more beer for the party, Cordova was "kind of a jerk to the clerk" at the store.
Toward the end of the night, Cordova appeared "pretty drunk" and was acting "aggravated" and "stupid and loud." He began breaking things and punching walls while cursing, and appeared "real angry." At one point, while sitting in a chair, Cordova "flipped out," yelled something, and hit the bottom part of a window with his hand, shattering the bottom portion of the glass. When McIntire asked if he was all right, Cordova stated, "This is my fucking house and I can do what the fuck I want." A moment later, a friend (Adam Paxton) entered the room and threw a glass or beer bottle above Cordova's head, shattering the remaining part of the glass window Cordova had just broken. Cordova was very upset and confronted Paxton, and stated Paxton owed him money for the window. Paxton replied that it "was already broken so I really don't owe you anything." Cordova began ripping the curtains from the windows, and Paxton left the room. Shortly thereafter, Ebbert walked into the room and Cordova (for no apparent reason) told him to "fuck off." Ebbert told Cordova that, if he had a problem with Ebbert, they could "go handle this outside." However, that confrontation cooled off, and Cordova and Ebbert went to their respective bedrooms.
Most of the guests left after the window-breaking incident, but several remained. Moriarty and Paxton were outside on the porch, and Ebbert was in the front yard talking to his cousin (Mel Ordonez), when Moriarty saw Cordova in the dining area. Cordova was standing approximately 20 feet from Moriarty and was holding a silver revolver and pointing it at Moriarty. Moriarty told Paxton they should leave and, when Ebbert and Ordonez started to go toward the house, Moriarty warned them that Cordova was inside with a gun and there was a problem. Ebbert replied he was not afraid of Cordova. Ebbert and Ordonez then went inside and went into Ebbert's bedroom.
Moriarty then heard Cordova and Ebbert talking in the living room and overheard Cordova say "hold it" and then say, in an angry tone, that Ebbert had made Cordova "feel like a coward in [my] own house." Ebbert then stated, "It looks like you are not playing around anymore. What are you going to do with that thing?" and then Moriarty heard a shot fired. Cordova had switched weapons and used a .12 gauge pump action shotgun, loaded with slug ammunition, to commit the offenses.
Moriarty then saw Cordova, holding a shotgun, standing just inside the house near the open front door. Cordova said, "Hey Damian" and then shot Paxton in the chest. Moriarty began running away, and when he turned to look back at Cordova, he saw Cordova raising the gun. Moriarty heard another shot being fired and felt something hit him in the back, but he was not struck by the shotgun slug. At some point one of the shots fired by Cordova also struck Mr. Ordonez.
Damian Resendez had attended the party and had been in an earlier confrontation with another partygoer over an alleged theft. Cordova had told Resendez at that time, "Stop acting like a bitch."
After Moriarty found a hiding place, he looked back and saw Cordova reenter the house. He then saw Cordova reemerge, still holding the shotgun, and begin running in the opposite direction. Moriarty went back inside the house and found Ebbert on the living room floor with a chest wound. Moriarty and his girlfriend, who had been in the bathroom, then left and called police.
Chula Vista Police Officer Szymczak was on duty in the area when he heard four shots being fired. He immediately began running toward the sounds, and observed a person (later identified as Damian Resendez) running toward him. Szymczak ordered Resendez to the ground, and Resendez complied. A few seconds later, Szymczak saw another person also fleeing the scene, but that person (who was not apparently armed) did not comply with Szymczak's order to stop.
At the same time, Officer Uribe was driving near the area of the shootings. He saw two men, one of whom was carrying a two-foot-long black object, standing on the corner of 1st Avenue and I Street. When Uribe shone his spotlight on them, the man carrying the object fled and jumped over a fence. Uribe radioed police and a perimeter was set up to contain the suspect and find him.
Approximately 45 minutes later, Uribe heard sounds from the side of a residence near the corner of 1st and I, and another officer (Officer Padilla) yelled out "police." Padilla saw Cordova emerge from behind a fence and ordered him to stop but Cordova ran back through the gate. Officer Chavez, approaching the area from a different direction, saw Cordova jump over a fence, and ordered him to stop. Cordova eventually complied, and police arrested him. During his transport to the police station, Cordova was acting "obnoxious" and made weird statements, including telling Chavez she was "the hottest detective [he's] ever seen" but later calling her a "bitch" and "whore." He also stated "one slug [was] all it took," and claimed he had a blueprint of the police station. A blood alcohol test taken from Cordova approximately five hours after the shootings showed he had a blood alcohol level of .16 percent.
The following morning, police searched the area around Cordova's arrest. They found a pump action .12 gauge shotgun with a pistol grip, and ballistics tests confirmed the shotgun matched the expended casings found at the site of the shootings.
Ebbert and Paxton died from shotgun wounds. Ordonez suffered "massive" soft tissue damage and other injuries.
B. Defense Evidence
Several of Cordova's friends testified Cordova drank often and was a heavy drinker. Cordova was drinking heavily, and also ingested cocaine, the night of the party. He became increasingly intoxicated, was acting bizarre, and made numerous illogical statements.
Dr. Smith, a psychiatrist, estimated Cordova's blood alcohol level at the time of the shooting was around .24 percent. Dr. Smith testified that some people would be rendered unconscious with a blood alcohol level of .16 percent. He stated that even extreme alcoholics with a blood alcohol level of .24 would be severely impaired or confused and could suffer memory loss. Dr. Smith also stated Cordova suffered from paranoia, organic brain syndrome with learning disability, a psychotic disorder caused by alcohol, and posttraumatic stress disorder resulting from prior life events. Dr. Smith believed, considering Cordova's prior mental deficiencies and extreme alcohol ingestion, Cordova's reported inability to recall the events of that night was consistent with his having acted in an alcoholic blackout.
Dr. Saddick, a neuropsychologist who extensively tested Cordova, testified for the defense that Cordova had a mild organic brain dysfunction in his frontal lobe. A frontal lobe dysfunction can impair a person's ability to plan and reason, and can cause a person to act impulsively without proper judgment, and the dysfunction is exacerbated by chronic and heavy alcohol use.
Cordova testified he had suffered from alcohol blackouts in the past. He had been drinking heavily throughout the party, did not recall most of the events of the party, and had no memory whatsoever of the shootings. He had no reason to kill his very good friends.
Cordova acknowledged he had several prior confrontations with people that involved alcohol. In one instance, he threw a beer bottle at a friend and, after they were separated, grabbed a kitchen knife and went after the friend, but others intervened and took the knife from him. In another incident, a friend (Galen Short) refused to leave Cordova's house and Cordova "came at him." They wrestled to the ground, and Cordova ultimately grabbed a knife and chased Short out of the house. In another incident, Cordova climbed onto the roof of his house carrying a shotgun after receiving a telephone call from someone claiming they were coming to his house with a truckload of illegal immigrants.
Short testified that, after they wrestled, Cordova became upset, went upstairs to his room, returned with a shotgun and pointed it at Short. Short ran from the house. As Short was driving away, Cordova came outside wielding a knife.
C. Rebuttal
A prosecution neuropsychologist, Dr. Delis, testified Cordova showed no consistent evidence of frontal lobe dysfunction, and Cordova was exaggerating or amplifying his psychiatric symptoms. He also stated Cordova was not suffering from posttraumatic stress disorder.
ANALYSIS
Cordova asserts the trial court's instructions to the jury on how to consider the evidence of his voluntary intoxication when determining his guilt or innocence of the charged offenses was incorrect as a matter of law, and the error was prejudicial.
A. General Principles
Unconsciousness can provide a complete defense to a criminal charge and, to constitute a defense, the "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.' [Citation.]" (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) However, although unconsciousness can provide a complete defense, where "the state of unconsciousness results from intoxication voluntarily induced, . . . it is not a complete defense. [Citation.] . . . [I]f the intoxication is voluntarily induced, it can never excuse homicide. [Citation.] Thus, the requisite element of criminal negligence is deemed to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary manslaughter if he voluntarily procured his own intoxication.' " (People v. Ochoa (1998) 19 Cal.4th 353, 423.) Accordingly, when a person becomes unconscious through voluntary intoxication and commits a homicide while in that condition, the killing is attributed to his own negligence in self-intoxicating, and he is guilty of the lesser included offense to murder of involuntary manslaughter. (People v. Albilez (2007) 41 Cal.4th 472, 516.)
B. The Instructions
The jury was given numerous instructions on the relevance of Cordova's intoxication, as well as his alleged mental defect, to the charged offenses. After instructing the jury that the murder charges required proof Cordova intended to commit the act and harbored malice aforethought, and the attempted murder charge similarly required proof Cordova intended to kill the victim, the court then gave a series of instructions on the potential mitigating impact of Cordova's intoxication.
The Agreed Upon Instructions
There were numerous instructions relating to voluntary intoxication to which there is no claim of error. First, the court instructed (pursuant to CALCRIM No. 625) that the jury "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[,] the defendant acted . . . with deliberation and premeditation, or the defendant was unconscious when he acted. [¶] 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 assumed the risk of that effect. You may not consider evidence of voluntary intoxication for any other purpose."
Second, the court instructed (pursuant to CALCRIM No. 626), that voluntary intoxication causing unconsciousness can reduce a crime from murder to involuntary manslaughter, explaining "[v]oluntary intoxication may cause a person to be unconscious of his or her actions. A very intoxicated person [may] still be capable of physical movement, but may not be aware of his or her actions or the nature of those actions. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using an intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect[,] or willingly assuming the risk of that effect. [¶] When a person voluntarily causes his or her own intoxication to the point of unconsciousness, the person assumes the risk that, while unconscious, he or she will commit acts inherently dangerous to human life. [¶] If someone dies as a result of the actions of a person who was unconscious due to voluntary intoxication, then the killing is involuntary manslaughter. [¶] Involuntary manslaughter has been proved if you find beyond a reasonable doubt that[:] one, the person killed without legal justification or excuse; two, the defendant did not act with the intent to kill; three, the defendant did not act with a conscious disregard for human life; and, four, as a result of voluntary intoxication, the defendant was not conscious of his actions or the nature of those actions. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not unconscious. If the People have not met this burden, you must find the defendant not guilty of murder or voluntary manslaughter."
Third, the court also instructed (pursuant to CALCRIM No. 3426), that the jury "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 malice aforethought. [¶] 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. [¶] In connection with the charge of murder[,] the People have the burden of proving beyond a reasonable doubt that the defendant acted with malice aforethought. If the People have not met this burden, you must find the defendant not guilty of murder. [¶] . . . [¶] You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to assault with a firearm."
Fourth, the court also gave an instruction on the relevance of Cordova's alleged mental disabilities apart from intoxication, instructing (pursuant to CALCRIM No. 3428): "You have heard evidence that the defendant may have suffered from a mental defect. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: malice aforethought. If the People have not met this burden, you must find the defendant not guilty of murder [or attempted murder]."
The Disputed Instruction
The instructions giving rise to this appeal are the variants of CALCRIM No. 3425 given by the court. In the form initially requested by Cordova and given (over objection by the prosecution) to the jury the instruction stated:
"A defendant is not guilty of any murder or attempted murder if he acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. Someone may be unconscious even though able to move about.
"Unconsciousness may be caused by a blackout or a combination of factors, such as alcoholic blackout, alcoholic hallucinations, organic brain dysfunction, learning disabilities, posttraumatic stress disorder, or any mental defect.
"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 of the evidence, you have a reasonable doubt that he was conscious, you must find him not guilty."
During deliberations, the jury sent a note asking for a read-back of the testimony on consciousness or unconsciousness provided by the defense and prosecution neuropsychologists and asking, "Can a person in [an] alcoholic blackout [be] considered conscious[] or unconscious[] by law"? The court's immediate reply was to instruct the jury to review instruction No.'s 3425, 3426, 3428, 625, 626 and 627.
However, on the following court day, the prosecution moved for an order to replace the defense version of CALCRIM No. 3425 with a different version of CALCRIM No. 3425 and to reinstruct the jury with the new version. The prosecution asserted it had previously objected to the defense version of CALCRIM No. 3425, and the type of unconsciousness that provides the complete defense contemplated by CALCRIM No. 3425 involved a blackout, or sleepwalking, or involuntary intoxication, but did not encompass a voluntarily-induced alcohol blackout. The court agreed the defense version of CALCRIM No. 3425 was potentially misleading to the extent it might suggest that unconsciousness from a blackout caused by voluntary intoxication would provide a complete defense. The court therefore ruled it would replace the defense version of CALCRIM No. 3425 with a revised version of CALCRIM No. 3425, and subsequently reinstructed the jury:
"The defendant is not guilty of any murder or attempted murder if he acted while legally unconscious. Someone is legally unconscious when he [or she] is not conscious of his [or her] actions. Someone may be unconscious even though able to move.
"Unconsciousness may be caused by a blackout, (other than an alcoholic blackout) or by a combination of organic brain dysfunction and posttraumatic stress disorder.
"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."
As part of its reinstruction, the court also told the jury to "consider [the new instruction] in conjunction with" the previously given instruction (which it reread to the jury in its entirety) on how voluntary intoxication causing unconsciousness would reduce a murder to involuntary manslaughter, and told the jury to consider these two instructions along with all of the other instructions previously given without giving the two instructions "undue emphasis."
Evaluation
Cordova argues the revised version of CALCRIM No. 3425 was an incorrect statement of the law because, in isolation, it told the jurors that voluntary intoxication was not a defense to the crimes of murder and attempted murder. However, we read the instructions as a whole rather than in isolation (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1185), and we presume the jury understood and properly applied the instructions given by the court. (People v. Lewis (2001) 26 Cal.4th 334, 390 [" 'Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case' "].)
Here, the court's instructions fully explained the relevance of unconsciousness to the charged offenses, and distinguished between unconsciousness caused by (1) organic brain dysfunction and/or posttraumatic stress disorder, or (2) voluntary intoxication. The court specifically instructed, under instructions about which there is no claim of error on appeal, the jury could "consider evidence, if any, of the defendant's voluntary intoxication only in a limited way," on whether he possessed the requisite malice aforethought or intent to kill and whether he acted with deliberation and premeditation (CALCRIM No. 625), and if the jury concluded his voluntary intoxication caused unconsciousness, the crime would be reduced from murder to involuntary manslaughter (CALCRIM No. 626). The court also explained the prosecution had the burden of proving beyond a reasonable doubt that the defendant was not unconscious, and if it did not meet this burden, the jury must acquit Cordova of murder or voluntary manslaughter, and Cordova's voluntary intoxication was relevant to this determination (CALCRIM No. 3426). Finally, the court also instructed on the relevance of Cordova's alleged mental disabilities apart from voluntary intoxication (CALCRIM No. 3428), explaining Cordova's alleged mental defects were relevant for the limited purpose of deciding whether, at the time of the charged crime, Cordova acted or failed to act with the intent or mental state required for the crime.
The instructions about which Cordova now complains merely restated how the evidence of unconsciousness caused by organic brain dysfunction and/or posttraumatic stress disorder, and unconsciousness caused by voluntary intoxication, applied to the charged offenses. The revised CALCRIM No. 3425 explained involuntary unconsciousness was, but voluntary intoxication unconsciousness was not, a defense to the crimes of murder and attempted murder. Moreover, the court did not merely instruct the jury with the revised CALCRIM No. 3425, but coupled that instruction with a rereading of the entirety of CALCRIM No. 626. This approach insured that the jury was reminded unconsciousness caused by voluntary intoxication, although not a defense to the crimes of murder and attempted murder, was a mitigating element requiring the jury to acquit Cordova of murder or attempted murder but would nevertheless make Cordova guilty of involuntary manslaughter.
We are convinced the jury was adequately instructed and, considering the entirety of the instructional charge to the jury and the closing arguments presented by the defense and prosecution, presume the jury understood and properly applied the applicable principles embodied in the instructions. (Cf. People v. Hughes (2002) 27 Cal.4th 287, 340-341.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. NARES, J.