Opinion
C084354
05-07-2018
THE PEOPLE, Plaintiff and Respondent, v. JASON SCOTT HARSIN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F4473)
In October 2014, defendant Jason Scott Harsin killed another driver in a head-on car collision while driving under the influence of alcohol. A jury found him guilty of second degree murder (Pen. Code, §§ 187, subd. (a), 189), driving under the influence of alcohol and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)), and driving with a blood-alcohol level of 0.08 percent or greater and causing bodily injury to another person (Veh. Code, § 23153, subd. (b)). The jury also found true the allegations that he personally inflicted great bodily injury on a nonaccomplice. (Pen. Code, § 12022.7.) The trial court sentenced him to 15 years to life in prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant's sole contention is that the trial court prejudicially erred in failing to instruct the jury, sua sponte, with CALCRIM No. 626 [voluntary intoxication causing unconsciousness] and a modified version of CALCRIM No. 625 [voluntary intoxication], so that the jury could consider finding him guilty of involuntary manslaughter, a lesser included offense to murder.
As we will explain, the defense of voluntary intoxication was not available to defendant to reduce his implied malice murder charge to involuntary manslaughter. Accordingly, we affirm the judgment.
BACKGROUND
In view of the limited issues raised on appeal, we recite only the background information necessary to its resolution.
Defendant's Prior Conduct
In October 2000, defendant was involved in a single-car rollover accident. When a police officer arrived at the scene, he smelled alcohol on defendant's breath and observed other physical signs of intoxication, including slow speech and bloodshot and watery eyes. Defendant admitted to the officer that he had been drinking prior to the accident. After administering field sobriety tests, the officer arrested defendant for driving under the influence of alcohol. (Veh. Code, § 23152.) In November 2000, defendant pleaded guilty to a "wet reckless," i.e., reckless driving with the consumption of alcohol. (Veh. Code, §§ 23103, subd. (a), 23103.5.)
In 2008 and 2012, defendant signed an application for a driver's license in which he acknowledged that driving under the influence of alcohol is extremely dangerous to human life, and that he could be charged with murder if he drove while under the influence of alcohol and killed someone.
The 2014 Incident
Around 10:00 p.m. on October 24, 2014, defendant drove drunk. He was traveling approximately 58 miles per hour in his F-150 Ford pickup truck when he crossed into oncoming traffic and collided with a car head-on. The driver of the car was fatally injured. There was no evidence that defendant braked or swerved before the collision. Around two hours after the collision, defendant's blood-alcohol level was 0.21 percent, more than two-and-a-half times the legal limit. Defendant was tried and convicted as described above.
DISCUSSION
As we have detailed above, defendant was charged with, among other crimes, second degree murder. During closing argument, the People argued that defendant was guilty of second degree murder based on an implied malice theory, which applies "when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [Citation.]" (People v. Cook (2006) 39 Cal.4th 566, 596.) The jury was instructed on second degree murder but not on any lesser included offenses thereof. CALCRIM Nos. 625 and 626 were neither requested nor discussed.
I
Defendant's Claim
On appeal, defendant contends that involuntary manslaughter, based on unconsciousness due to voluntary intoxication, is a lesser-included offense of the implied malice second degree murder he was alleged to have committed when driving drunk. He further contends that substantial evidence was presented at trial to support a finding he was unconscious at the time of the collision due to voluntary intoxication.
He first argues that the trial court had a sua sponte duty to provide the jury with an avenue for finding involuntary manslaughter by giving CALCRIM No. 626, which provides:
"Voluntary 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 any 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:
"1. The defendant killed without legal justification or excuse;
"2. The defendant did not act with the intent to kill;
"3. The defendant did not act with a conscious disregard for human life;
"AND
"4. As a result of voluntary intoxication, the defendant was not conscious of (his/her) 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)."
He next argues that the trial court should have given CALCRIM No. 625, which provides:
"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 an intent to kill[,] [or] [the defendant acted with deliberation and premeditation[,]] [[or] the defendant was unconscious when (he/she) acted[,]] [or the defendant <insert other specific intent required in a homicide charge or other charged offense>.]
"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.
"You may not consider evidence of voluntary intoxication for any other purpose."
II
Analysis
A trial court is obligated to instruct on the general principles of law that are raised by the evidence. This includes a sua sponte duty to instruct on a lesser included offense when there is substantial evidence, viewed in the light most favorable to the defendant, from which a rational jury could conclude that the defendant committed the lesser offense and that he is not guilty of the greater offense. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5; People v. DePriest (2007) 42 Cal.4th 1, 50; People v. Cole (2004) 33 Cal.4th 1158, 1218.) The de novo standard of review is applied to the failure to instruct on a lesser included offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584.)
When a killing is committed while driving a vehicle, the driver's voluntary intoxication cannot reduce his criminal responsibility to involuntary manslaughter. (People v. Carlson (2011) 200 Cal.App.4th 695, 705-707 (Carlson) [unconsciousness caused by voluntary intoxication is not a defense to second degree murder based on implied malice when a fatal traffic collision occurs]; People v. Ferguson (2011) 194 Cal.App.4th 1070, 1082 [although involuntary manslaughter is usually a lesser included offense of murder, in the context of drunk driving it is not].)
Under current law, voluntary intoxication cannot negate a finding of implied malice. (People v. Timms (2007) 151 Cal.App.4th 1292, 1297-1298, 1300 [evidence of "voluntary intoxication is irrelevant to proof of the mental state of implied malice"].) The limited admissibility of evidence proving voluntary intoxication is governed by section 29.4, which was formerly codified at section 22. (Carlson, supra, 200 Cal.App.4th at p. 705; see § 29.4 [former § 22 renumbered § 29.4 and amended by Stats. 2012, ch. 162, § 119).) In 1995, former section 22 was amended to "preclude a defendant from relying on his or her unconsciousness caused by voluntary intoxication as a defense to a charge of implied malice murder." (Carlson, supra, 200 Cal.App.4th at p. 705.) In relevant part, this statute provides: "Evidence 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." (§ 29.4, subd. (b).) Thus, following the amendment to former section 22, "[i]t is no longer proper to instruct a jury . . . that 'when a defendant, as a result of voluntary intoxication, kills another human being without premeditation and deliberation and/or without intent to kill (i.e. without express malice), the resultant crime is involuntary manslaughter.' This instruction is incorrect because a defendant who unlawfully kills without express malice due to voluntary intoxication can still act with implied malice, which voluntary intoxication cannot negate. . . . To the extent that a defendant who is voluntarily intoxicated unlawfully kills with implied malice, the defendant would be guilty of second degree murder." (People v. Turk, supra, 164 Cal.App.4th at pp. 1376-1377, fn. omitted.)
Here, defendant admits that his claimed unconsciousness at the time of the fatal collision was due to "voluntary and heavy intoxication." He was prosecuted for second degree murder based on an implied malice theory. Therefore, CALCRIM No. 626 is inapplicable under the facts of this case. When malice is implied, voluntary intoxication cannot negate it. (Carlson, supra, 200 Cal.App.4th at p. 707.) This rule does not change when intoxication leads to unconsciousness. "No reason exists to carve out an exception where a person drinks so much as to render him or her unconscious." (Ibid.) Moreover, crimes committed "in the driving of a vehicle" are expressly excluded from the definition of involuntary manslaughter. (§ 192, subd. (b).) Defendant's arguments urging a contrary result are unpersuasive.
We reach the same result with regard to defendant's related claim, that the trial court erred in failing sua sponte to instruct the jury with a modified version of CALCRIM No. 625 [voluntary intoxication]. This instruction is inapplicable to cases where, as here, the murder charge is exclusively based on a theory of implied malice. This is because voluntary intoxication can only negate express malice, not implied malice, as was the basis for the People's case against defendant here. (§ 29.4, subd. (b); People v. Martin (2000) 78 Cal.App.4th 1107, 1114-1115.)
Because we have concluded that the trial court did not err in failing to sua sponte instruct the jury with CALCRIM Nos. 625 and 626, we do not consider the People's alternative argument that the record does not contain substantial evidence showing defendant was unconscious at the time of the fatal collision. We also decline to consider the equal protection argument raised for the first time in defendant's reply brief. "Withholding a point until the reply brief deprives the respondent of an opportunity to answer it. . . . Hence, a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before. [Citations.]" (People v. Baniqued (2000) 85 Cal.App.4th 13, 29, fn. omitted.) Defendant has shown no reason for his failure to timely raise the issue. It is therefore deemed forfeited. (Ibid.)
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Robie, Acting P. J. /s/_________
Hoch, J.