Opinion
D074711
12-11-2018
THE PEOPLE, Plaintiff and Respondent, v. EFREN INIGUEZ DELGADILLO, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. RIF1601894) APPEAL from a judgment of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Efren Iniguez Delgadillo guilty of one count of attempted premeditated murder (Pen. Code, §§ 664 & 187, subd. (a)), by personally using a deadly weapon (a vehicle) (§ 12022, subd. (b)(1)); and one count of assault (§ 245). As to both counts the jury further found that Delgadillo personally caused great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced Delgadillo to an indeterminate term of seven years to life, and a consecutive determinate term of four years.
Unless otherwise indicated all further statutory references are to the Penal Code.
Delgadillo contends that the trial court prejudicially erred in instructing the jury on voluntary intoxication with respect to the attempted murder count, as the jury was instructed that voluntary intoxication could be considered in determining whether Delgadillo acted with an intent to kill but did not state that voluntary intoxication could be considered in determining whether Delgadillo acted with premeditation and deliberation. We conclude that the voluntary intoxication was legally incorrect, but that Delgadillo has not established that the error was prejudicial. We accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On February 29, 2016, at around 5:30 or 6:00 p.m., E.C. was in the parking lot of Home Depot talking to day laborers who often gather there looking for work. According to E.C., the day laborers were standing around in the parking lot, listening to music and drinking beer. One of the day laborers was Delgadillo, whom E.C. had seen in the parking lot on other occasions. E.C. saw Delgadillo "downing a beer," and Delgadillo testified that he drank several beers that day.
To protect his privacy, we refer to the victim of Delgadillo's crime by his initials, E.C., and we intend no disrespect by doing so.
According to Delgadillo, he had three beers by lunchtime, and he then arrived at Home Depot at around 2:45 p.m. and immediately began drinking more beer. Delgadillo said he was "drinking pretty heavily that day."
E.C. and Delgadillo got into an altercation in the parking lot. According to E.C., Delgadillo approached him and said something aggressive. E.C. told Delgadillo he did not want any trouble, but Delgadillo then puffed out his chest and grabbed E.C.'s hand, taking a fighting stance. E.C. perceived that Delgadillo was drunk. E.C. walked to his truck and sat inside to get away from Delgadillo, but Delgadillo followed him. Delgadillo repeatedly pulled on the truck's mirror and hit the truck's window. Delgadillo said, "I'm going to finish you. I'm going to kill you right now. If you don't get out . . . I'm going to run you over with my truck."
E.C. got out of his truck, pushing the truck door into Delgadillo as he did so. The two men then engaged in a physical fight over the course of the next few minutes, with E.C. periodically trying to get back to his truck and stop the fight, but he was unable to do so because Delgadillo would attack him. At one point, Delgadillo bit E.C.'s hand. Delgadillo was saying things that did not make sense to E.C., such as that E.C. had no reason to get close to E.C.'s own truck, and that E.C.'s truck was going to belong to Delgadillo. Delgadillo also repeatedly said that as soon as he was able to do so, he was going to run over E.C. with his (Delgadillo's) truck, which was parked in the vicinity of E.C.'s truck. Eventually, other men pulled Delgadillo away and the fight stopped for a while, but then Delgadillo once again attacked E.C. Delgadillo tripped and fell on his face, but then got up, acted like he was going to shake hands with E.C. to stop the fight, but then punched E.C. in the face.
E.C. went over to the Home Depot store to tell an employee what was happening. As E.C. was walking back to the parking lot, he heard a vehicle accelerating and saw Delgadillo's Dodge Ram truck driving toward him at a high rate of speed. E.C. began to run from Delgadillo's truck, but after E.C. ran a distance of approximately 15 feet over the course of a few seconds, Delgadillo was able to catch up with him, hit him, and run over him with the truck. Before reaching E.C., Delgadillo drove over a planter in the parking lot. When Delgadillo reached E.C., he did not immediately stop, but rather dragged E.C. under his truck for a short distance. Delgadillo then exited the truck and stood over E.C. A Home Depot employee who witnessed the incident described Delgadillo as being in a panicked state, with his hands shaking, as if thinking, "Oh my gosh, what happened[?]" According to E.C., Delgadillo kicked his body after exiting the truck and stated that E.C. got what he "deserved."
As a result of being run over with the truck, E.C. suffered multiple fractures of his body, was required to undergo surgeries, and was in the hospital and a rehabilitation facility for over a month.
When law enforcement officers arrived on the scene, Delgadillo denied hitting E.C. with a truck, but he did admit to getting into a fight with E.C. The law enforcement officer did not notice any obvious signs that Delgadillo was intoxicated, such as the odor of alcohol, slurred speech, staggering, red watery eyes, or incoherence. However, no test was administered to determine Delgadillo's blood alcohol level.
An information charged Delgadillo with one count of attempted premeditated murder (§§ 664 & 187, subd. (a)), with the further allegation that he personally used a deadly weapon (a vehicle) (§ 12022, subd. (b)(1)); and one count of assault (§ 245). As to both counts it was further alleged that Delgadillo personally caused great bodily injury (§ 12022.7, subd. (a)).
Delgadillo testified at trial that he remembered joking around with E.C. in the parking lot, which E.C. asked him to stop doing, but that he was so intoxicated from drinking beer that he blacked out after that and did not remember fighting with E.C. or running over him with a truck. According to Delgadillo the first thing he remembered was waking up in jail the next day. Delgadillo stated that he has "nothing against" E.C., and it is not in his character to try to hurt someone, so he does not believe that he was the person who attacked E.C.
The jury convicted Delgadillo on both counts and made a true finding on the additional allegations. The trial court sentenced Delgadillo to an indeterminate term of seven years to life, and a consecutive determinate term of four years.
II.
DISCUSSION
The sole argument Delgadillo raises on appeal is a challenge to the jury instruction on voluntary intoxication. The jury was instructed on voluntary intoxication as follows:
"You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the intent to kill.
"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 annn [sic] intoxicating effect, or willingly assuming the risk of that effect.
"In connection with the charge of attempted murder or the lesser included offense of attempted voluntary manslaughter, the people have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to kill. If the people have not met this burden you must find the defendant not guilty of attempted murder or attempted voluntary manslaughter.
"You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to assault with a deadly weapon as charged in count 2."
The trial court based this modified instruction on CALCRIM No. 3426, which is the general instruction on voluntary intoxication, rather than instructing with CALCRIM No. 625, which is specifically applicable to homicide crimes.
Delgadillo contends that this instruction was legally erroneous because it did not inform the jury that it could consider voluntary intoxication when deciding whether Delgadillo acted with premeditation and deliberation. A. The Appellate Challenge to Voluntary Intoxication Instruction Is Not Forfeited
As an initial matter, we consider the People's contention that Delgadillo forfeited his ability to challenge the instruction on appeal.
As background, we note that the voluntary intoxication instruction was not proposed by the parties, and it was not among the instructions that the trial court identified during discussion with counsel about the instructions that it intended to give to the jury. Instead, it appears that the trial court may have sua sponte decided to instruct on voluntary intoxication while reading the instructions to the jury. Specifically, at the end of the trial court's instructions to the jury, the trial court asked counsel to approach the bench. An unreported discussion was held off the record, and the trial court then read one last instruction to the jury, namely the voluntary intoxication instruction that we have quoted above.
The trial court discussed the proposed instructions in numerical order with counsel, and it did not mention either CALCRIM No. 625 or CALCRIM No. 3426.
The People contend that because Delgadillo "did not request a pinpoint instruction relating voluntary intoxication to premeditation and deliberation" he has "forfeited his claim of instructional error on appeal." We disagree.
"Although a trial court has no sua sponte duty to give a 'pinpoint' instruction on the relevance of evidence of voluntary intoxication, 'when it does choose to instruct, it must do so correctly.' " (People v. Pearson (2012) 53 Cal.4th 306, 325 (Pearson).) As our Supreme Court has explained, "failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal." (People v. Lee (2011) 51 Cal.4th 620, 638.) However, in contrast, "[w]here . . . defendant asserts that an instruction is incorrect in law an objection is not required." (People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11, italics added.) Here, Delgadillo does not contend that the jury instruction should have been clarified, but rather he contends that the jury instruction was incorrect in law because it improperly excluded the issue of premeditation and deliberation from the scope of issues for which voluntary intoxication instruction could be considered. Therefore, no objection to the instruction was required to preserve Delgadillo's appellate challenge.
Further, another exception to the forfeiture doctrine for failure to object to an instruction arises when a defendant's substantial rights are at issue. (§ 1259; People v. Battle (2011) 198 Cal.App.4th 50, 64. "Substantial rights are affected if the error 'result[s] in a miscarriage of justice, [i.e.,] making it reasonably probable defendant would have obtained a more favorable result in the absence of error.' " (People v. Elsey (2000) 81 Cal.App.4th 948, 953, fn. 2.) "In this regard, '[t]he cases equate "substantial rights" with reversible error' under the test stated in People v. Watson (1956) 46 Cal.2d 818." (People v. Felix (2008) 160 Cal.App.4th 849, 857.) Thus, " ' "[a]scertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." ' " (People v. Franco (2009) 180 Cal.App.4th 713, 719.) Accordingly, even were we to conclude that the failure to object to the instruction forfeited the appellate argument, we would still be required to consider the issue to determine whether any instructional error impacted Delgadillo's substantial rights. B. The Voluntary Intoxication Instruction Was Legally Incorrect
Turning to the merits of Delgadillo's challenge to the instruction, we agree with Delgadillo that the instruction was legally incorrect.
The jury was instructed that it could not consider voluntary intoxication "for any other purpose" except whether Delgadillo acted "with the intent to kill," but this statement is plainly incorrect in light of section 29.4, subdivision (b), which provides that "[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (Italics added.) Because Delgadillo was charged with attempted murder, in addition to stating the jury could consider voluntary intoxication when deciding whether Delgadillo acted with an intent to kill (i.e., express malice aforethought), the instruction also should have stated that the jury could consider voluntary intoxication in deciding whether Delgadillo premeditated and deliberated in attempting to kill E.C. Indeed, the CALCRIM instruction that specifically addresses voluntary intoxication for homicide crimes provides bracketed language for use in murder prosecutions, stating that the jury can consider evidence of voluntary intoxication "in deciding whether the defendant acted with an intent to kill[,] [or] [the defendant acted with deliberation and premeditation[,] ] . . . ." (CALCRIM No. 625.) However, the trial court inexplicably did not instruct with CALCRIM No. 625, and instead unsuccessfully attempted to fashion its own voluntary intoxication instruction for an attempted murder charge by relying on the generally applicable voluntarily intoxication instruction in CALCRIM No. 3426. The instruction was legally incorrect because, instead of informing the jury it could consider evidence of voluntary intoxication in deciding whether Delgadillo premeditated and deliberated his attempted murder of E.C., the trial court erroneously told the jury that it could only make use of voluntary intoxication when considering whether Delgadillo acted with an intent to kill, and for no other purpose.
The People contend that the instruction was not erroneous when the jury instructions are considered as a whole. We disagree. While it is true that we may "review the instructions as a whole to determine whether it is 'reasonably likely the jury misconstrued the instructions as precluding it from considering' the intoxication evidence" (People v. Mendoza (1998) 18 Cal.4th 1114, 1134 (Mendoza)), in this case nothing in the instructions suggested to the jury that it could consider voluntary intoxication when deciding whether Delgadillo premeditated and deliberated. Indeed, to the contrary, the plain language of the instruction expressly precludes any such approach, as it states that voluntary intoxication may be considered in deciding whether Delgadillo acted with intent, and then tells the jury that "[y]ou may not consider evidence of voluntary intoxication for any other purpose." (Italics added.) A reasonable juror following this instruction would understand that voluntary intoxication could not be used to decide whether Delgadillo premeditated and deliberated his attempted murder of E.C.
The People rely on People v. Castillo (1997) 16 Cal.4th 1009 and People v. Hughes (2002) 27 Cal.4th 287, 342, in which instructions on voluntary intoxication were held not to be erroneous, even though they did not mention premeditation and deliberation as one of the mental states for which voluntary intoxication could be considered. However, Castillo and Hughes are inapposite because they dealt with different wording in the jury instructions. In both Castillo and Hughes, the trial court told the jury it should consider defendant's voluntary intoxication in determining whether he had the "specific intent" or the "mental state" required for the charged crime. (Castillo, at p. 1014, fn. 2; Hughes, at p. 342.) In both cases, our Supreme Court observed that because premeditation and deliberation is a mental state, by referring to the defendant's "mental state," the instruction on voluntary intoxication adequately informed the jury that it could consider voluntary intoxication when determining whether the defendant acted with premeditation and deliberation. (Castillo, at p. 1016; Hughes, at p. 342.) Here in contrast, the voluntary intoxication instruction did not refer generally to a "mental state" and it specifically precluded the jury from using voluntary intoxication for any issue except whether Delgadillo acted with the intent to kill. Thus, here, unlike in Castillo and Hughes, even in light of the instructions as a whole, the voluntary intoxication instruction set forth an incorrect statement of the law. C. Delgadillo Has Not Established That the Error Was Prejudicial
Having concluded that it was error for the trial court to give the jury a voluntary intoxication instruction that precluded it from considering voluntary intoxication when deciding whether Delgadillo acted with premeditation and deliberation, we next consider whether the error was prejudicial.
Of course, if the jury found that the People failed to prove that Delgadillo premeditated and deliberated when he attempted to kill E.C., that result would have been more favorable for Delgadillo in terms of sentencing, in that attempted murder without premeditation and deliberation would not have required the imposition of an indeterminate life sentence. (§ 664, subd. (a).)
1. The Watson Standard for Assessing the Prejudice Attributable to Errors of State Law Applies Here
The first issue we must address in our harmless error review is what standard applies to our analysis. Delgadillo contends that the standard for assessing the prejudice resulting from federal constitutional error should apply. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) The People contend that the instructional error is reviewed under the standard of prejudice for errors of state law. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
As we have explained, the error at issue here had the effect of precluding the jury from considering evidence of voluntary intoxication when deciding whether the People met their burden to prove that Delgadillo acted with premeditation and deliberation. As our Supreme Court has held, when, as here, an instructional error has the effect of precluding the jury from considering the evidence of voluntary intoxication in deciding whether the People met their burden to establish a necessary mental state, "[a]ny error would have the effect of excluding defense evidence and is thus subject to the usual standard for state law error: 'the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant.' " (Mendoza, supra, 18 Cal.4th at pp. 1134-1135, italics added [holding that if, on remand, the trial court determined that the jury instructions were defective because they precluded the jury from considering evidence of voluntary intoxication on the issue of whether the defendant acted with the specific intent needed for aiding and abetting liability, the trial court should apply the Watson standard in determining the prejudicial nature of the instructional error].) Our Supreme Court has reaffirmed in subsequent opinions what it held in Mendoza, namely that when an instructional error precludes the jury from considering evidence of voluntary intoxication on the issue of whether the defendant acted with the required mental state, the Watson standard for assessing prejudice applies. (People v. Covarrubias (2016) 1 Cal.5th 838, 897; People v. Letner and Tobin (2010) 50 Cal.4th 99, 187.)
Mendoza and the cases following it are applicable here. As in those cases, by precluding the jury from considering voluntary intoxication on the issue of whether Delgadillo acted with premeditation and deliberation, the erroneous instruction on voluntary intoxication had "the effect of excluding defense evidence and is thus subject to the usual standard for state law error." (Mendoza, supra, 18 Cal.4th at p. 1134; see also Pearson, supra, 53 Cal.4th at p. 325 [the prejudice from an error in omitting torture from the list of specific intent crimes for which the jury could consider evidence of voluntary intoxication was assessed by application of "the 'reasonable probability' test of prejudice"].)
Delgadillo contends that the erroneous voluntary intoxication instruction constituted a misinstruction on the elements of an offense amounting to federal constitutional error. (See People v. Flood (1998) 18 Cal.4th 470, 502-503 ["an instructional error that improperly describes or omits an element of an offense" is subject to harmless error review under Chapman].) This argument fails because our Supreme Court has made clear that an instructional error that precludes the jury from considering voluntary intoxication when determining whether a defendant possessed a specific mental state does not misdescribe or omit an element of the offense, but instead simply has "the effect of excluding defense evidence." (Mendoza, supra, 18 Cal.4th at p. 1134; see also Pearson, supra, 53 Cal.4th at p. 325, fn. 9 [erroneous pinpoint instruction on voluntary intoxication did not "unconstitutionally lessen the prosecution's burden of proof" on an element of the crime].)
Accordingly, we apply the Watson standard in determining whether the instructional error at issue here was prejudicial.
2. A More Favorable Result for Delgadillo Was Not Reasonably Probable in the Absence of the Error
Under the Watson standard, to establish prejudice Delgadillo must show that " 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (People v. Mower (2002) 28 Cal.4th 457, 484, italics added.) "There is a reasonable probability of a more favorable result . . . when there exists 'at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.' " (Ibid.) Under this standard, "review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman).)
Although courts sometimes look to statements made during the parties' closing arguments to assess whether an instructional error was prejudicial (People v. Cady (2016) 7 Cal.App.5th 134, 149), we do not perceive anything in the parties' closing arguments, taken as a whole, that serves to cure the instructional error. With respect to defense counsel, he did not say anything about voluntary intoxication during closing argument. With respect to the prosecutor, at one point during closing argument, the prosecutor introduced the concept of premeditation and deliberation when discussing voluntary intoxication, which might be viewed as an attempt to set forth a correct statement of the law, but in the same statement the prosecutor seemed to focus only on the effect of voluntary intoxication on the ability to form specific intent. "Voluntary intoxication. That says the defendant was so intoxicated that he could not have formed the intent to kill or to act willfully with premeditation and deliberation. He was so intoxicated he could not form any intent at all." The prosecutor also told the jury that voluntary intoxication should not impact its verdict because drinking alcohol "may affect . . . judgment" and "may affect . . . decision-making" but "drinking alcohol does not mean you can't form intent." Moreover, in another part of her closing argument, the prosecutor emphasized to the jury that intent to kill and premeditation were not the same thing. "The one thing I do want you to pay attention to: premeditation and deliberation is not the same as intent." If anything, this comment creating a distinction between the two concepts exacerbated the error in the voluntary intoxication instruction because the instruction given by the trial court refers to intent but not to premeditation and deliberation.
In considering the issue of premeditation and deliberation, the jury was guided by the following definition: "The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act of attempted murder. [¶] The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time."
Delgadillo contends that the error in the voluntary intoxication instruction was prejudicial because, if the jury was permitted to consider voluntary intoxication when deciding whether Delgadillo acted with premeditation and deliberation, "the jury could have believed [his] intoxication le[d] him to act impulsively" and that he "failed to weigh and consider his actions due to his level of intoxication." As we will explain, we conclude that it is not reasonably probable that the jury would have reached a different conclusion on premeditation and deliberation if it was instructed that it could consider Delgadillo's intoxication when deciding that issue.
As an initial matter, we note that the record contains strong evidence that Delgadillo was intoxicated to some extent. Although no test was performed to determine Delgadillo's blood alcohol level, E.C. testified that he saw Delgadillo downing a beer in the parking lot and described Delgadillo as "drunk" during their confrontation. Further, Delgadillo testified that he was drinking heavily in the Home Depot parking lot. Thus, had the jury been instructed that it could consider voluntary intoxication when deciding whether Delgadillo acted with premeditation and deliberation, it is likely the jury would have determined that the factual predicate existed for it to do so.
The People contend that "the evidence of voluntary intoxication was not strong" because the law enforcement officer who responded to the scene did not notice any obvious signs of intoxication. However, in our view, the People overstate the significance of the officer's testimony. The officer testified that Delgadillo may have consumed alcohol, but that there were insufficient indications of intoxication to seek medical treatment for Delgadillo on that basis or to charge him with public intoxication. In light of the entirety of the evidence presented at trial, the disputed issue appears to be the extent of Delgadillo's intoxication and its effect on Delgadillo's mental state, not the issue of whether Delgadillo had consumed alcohol. --------
Nevertheless, the crucial question is whether it is reasonably probable that the evidence of voluntary intoxication would have caused the jury to reach a different conclusion on premeditation and deliberation. In determining whether the instructional error was prejudicial, one important factor is the relative strength of the evidence supporting a finding of premeditation and deliberation. (Breverman, supra, 19 Cal.4th at p. 177.) Here, the jury had relatively strong evidence supporting a finding that Delgadillo acted with premeditation and deliberation when he hit E.C. with the truck. As E.C. testified, Delgadillo was thinking about using a truck to run over E.C. throughout the physical confrontation, as he repeatedly told E.C. that he was going to kill E.C. by running him over as soon as he was able to do so. Further, it took time for Delgadillo to get into his truck, drive it toward E.C., drive over a planter, and then continue to accelerate until he ran over E.C., showing that Delgadillo had ample time to weigh the considerations for and against his actions and nevertheless decided to kill E.C., rather than taking quick and unconsidered action. In addition, E.C. testified that after exiting the truck, Delgadillo kicked him and stated that he got what he "deserved," establishing that Delgadillo knew what he was doing when he ran over E.C. and, in his own mind, had a motive to do so.
As we understand Delgadillo's argument, he contends that because a commonly recognized effect of alcohol consumption is lack of impulse control, the jury would have concluded that, despite the fact that Delgadillo repeatedly threatened to run over E.C., due to alcohol intoxication Delgadillo was acting impulsively rather than with premeditation and deliberation when he finally took action to do so. However, Delgadillo's argument is not persuasive because the jury was already presented with, and permitted to consider, Delgadillo's behavior during the incident, which showed that Delgadillo was acting irrationally and impulsively, regardless of the cause of that behavior. Specifically, as described by E.C., Delgadillo was irrational during their interaction because he was saying things that did not make sense. Delgadillo was also acting impulsively throughout the incident, as evidenced by the fact that on several occasions Delgadillo appeared to want to stop fighting and then unexpectedly attacked E.C. again. Further showing Delgadillo's irrational and impulsive behavior, the Home Depot employee at the scene testified that immediately after exiting the truck, Delgadillo was in a panicked state, with his hands shaking, as if thinking, "Oh my gosh, what happened[?]" Despite being presented with evidence of this course of behavior showing Delgadillo's impulsiveness and irrationality, the jury nevertheless found, based on the evidence we have set forth above, that Delgadillo acted with premeditation and deliberation when he ran over E.C. with the truck. Thus, even if the jury had also been permitted to take into account that Delgadillo's irrational and impulsive behavior was due to alcohol intoxication, we do not perceive a reasonable probability that the jury would have come to a different conclusion on premeditation and deliberation. Put simply, the jury already knew and considered that Delgadillo had exhibited irrational and impulsive behavior. Thus, consideration of the fact that Delgadillo was intoxicated with a substance that could have been the cause of that irrational and impulsive behavior would not likely have changed the jury's conclusion that Delgadillo acted with premeditation and deliberation when he ran over E.C. with the truck.
We accordingly conclude there is no reasonable probability that the jury would have reached a finding more favorable to Delgadillo on the issue of premeditation and deliberation had it been properly instructed on voluntary intoxication. Accordingly, Delgadillo has not established that the instructional error was prejudicial.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: NARES, Acting P. J. HALLER, J.