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People v. Hernandez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Feb 9, 2012
No. B228171 (Cal. Ct. App. Feb. 9, 2012)

Opinion

B228171

02-09-2012

THE PEOPLE, Plaintiff and Respondent, v. JONATHAN HERNANDEZ, Defendant and Appellant.

Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. BA370681)

APPEAL from a judgment of the Superior Court of Los Angeles County, George Gonzalez Lomeli, Judge. Affirmed.

Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Jonathan Hernandez appeals from the judgment entered following a jury trial that resulted in his conviction for making criminal threats. He was sentenced to a term of 16 months in prison. Hernandez contends the trial court committed instructional error. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. People's evidence.

On April 26, 2010, at approximately 11:00 p.m., Hernandez attempted to purchase alcohol from a Los Angeles liquor store. The clerk refused to make the sale because Hernandez was too intoxicated.

Hernandez then went to the Bara Latina, a Los Angeles bar near his home. When Hernandez entered the establishment, security guard Emerson Quintanilla did not see him stumble; he simply "walk[ed] in just like a normal person." Hernandez sat at a table in the back of the bar.

Shortly thereafter, Hernandez's girlfriend, Miriam Miranda, arrived at the bar and asked Quintanilla if she could look for Hernandez inside. Quintanilla escorted Miranda to Hernandez's table. Miranda asked Hernandez to leave with her, but he refused, saying that he wanted to stay and drink. The couple began to argue and Hernandez raised his voice. According to Quintanilla, there was nothing abnormal about the way Hernandez was speaking.

Quintanilla asked the couple to go outside. Miranda complied, but Quintanilla had to ask Hernandez to leave several times. Hernandez eventually walked toward the door, but then turned and grabbed Quintanilla's collar. Quintanilla told him to let go. Hernandez refused. Quintanilla grabbed Hernandez's arms, forced him to the ground, and held Hernandez down until he let go of Quintanilla's shirt. Quintanilla then helped Hernandez up. Hernandez "got up normally" and was able to stand. He appeared to Quintanilla to be drunk, but was steady on his feet. Quintanilla did not believe Hernandez was highly intoxicated.

As Hernandez walked toward the door, he threatened to return and kill Quintanilla. He ran his finger across his throat in a "throat-slitting motion" and stated that he was a member of the Mara Salvatrucha gang. He told Quintanilla that he would be sorry. He then left the bar.

Five minutes later, Hernandez returned to the bar, holding a machete. He approached within six feet of Quintanilla and told him, " 'I'm going to kill you.' " Quintanilla backed away. Another bar patron convinced Hernandez to relinquish the machete.

b. Defense evidence.

Miranda, Hernandez's girlfriend, testified that Hernandez had drunk approximately 20 beers between 8:00 p.m. and 10:40 p.m., before he arrived at the bar. He was swaying from side to side and was unable to walk well. His speech was slurred and he "was making no sense." Miranda followed Hernandez to the bar and observed Quintanilla frisk him before allowing him to enter. Miranda asked Quintanilla how he could allow Hernandez into the bar when he was so drunk. She threatened to call police if the bar served Hernandez alcohol. When Hernandez left the bar, he was in tears because he felt humiliated.

2. Procedure.

Trial was by jury. The jury convicted Hernandez of making criminal threats (Pen. Code, § 422) and found he personally used a dangerous weapon, a machete. (Pen. Code, § 12022, subd. (b)(1).) The trial court sentenced Hernandez to 16 months in prison. It imposed a restitution fine, a suspended parole restitution fine, a court security assessment, and a criminal conviction assessment. Hernandez appeals.

DISCUSSION

1. The trial court did not err by refusing to instruct on the defense of unconsciousness.

a. Additional facts.

The trial court indicated it would instruct on voluntary intoxication. (CALJIC Nos. 4.21, 4.21.1, & 4.22). Defense counsel requested that the court also instruct on the defense of unconsciousness (CALJIC Nos. 4.30 & 4.31). The trial court declined. It explained that instructions regarding unconsciousness were warranted only when the defendant was involuntarily intoxicated, whereas Hernandez's intoxication was voluntary. The court explained: "if you look at [the instruction on] unconscious act[s], they talk about things such as performing things while you're asleep, suffering from delirium, because of epilepsy, a blow to the head, involuntary intoxication, drugs, what have you. [¶] If you look at the underlying commonality of all of these, in that it is beyond the control of the individual, something that they themselves did not impose on themselves—epilepsy, a blow to the head, what have you—in this case, you have the voluntary act of drinking."

Those instructions, as given to the jury, provided: "In the crime of criminal threats, of which the defendant is accused in Count 1, a necessary element is the existence in the mind of the defendant of the specific intent or mental state. [¶] If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required specific intent and/or mental state[.] [¶] If from all the evidence you have a reasonable doubt whether the defendant formed that specific intent and/or mental state, you must find that [he] did not have such specific intent and/or mental state. (CALJIC No. 4.21.)
CALJIC No. 4.21.1 provided: "It is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. [¶] However, there is an exception to this general rule, namely, where a specific intent or mental state is an essential element of a crime. In that event, you should consider the defendant's voluntary intoxication in deciding whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime. [¶] Thus, in the crime charged in Count[] 1, a necessary element is the existence in the mind of the defendant of a certain specific intent or mental state which is included in the definition of the crime set forth elsewhere in these instructions. [¶] If the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that defendant had the required specific intent or mental state. [¶] If from all the evidence you have a reasonable doubt whether a defendant had the required specific intent or mental state, you must find that defendant did not have that specific intent or mental state."
CALJIC No. 4.22 stated: "Intoxication of a person is voluntary if it results from the willing use of any intoxicating liquor, drug or other substance, knowing that it is capable of an intoxicating effect or when he willingly assumes the risk of that effect. [¶] Voluntary intoxication includes the voluntary ingestion, injecting or taking by any other means of any intoxicating liquor, drug or other substance."

b. Discussion.

Hernandez contends the trial court prejudicially erred by refusing to instruct the jury with CALJIC Nos. 4.30 and 4.31, regarding the defense of unconsciousness. We disagree. A trial court must instruct on general principles of law that are closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case, including defenses on which the defendant relies or that are not inconsistent with the defendant's theory of the case. (People v. Boyer (2006) 38 Cal.4th 412, 468-469; People v. Salas (2006) 37 Cal.4th 967, 982; People v. Johnson (2009) 180 Cal.App.4th 702, 707; People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) A trial court must instruct on unconsciousness if there is substantial evidence supporting the defense. (People v. Rogers (2006) 39 Cal.4th 826, 887.) However, a court is not obliged to instruct on theories that lack substantial evidentiary support. (People v. Burney (2009) 47 Cal.4th 203, 246; People v. Manriquez (2005) 37 Cal.4th 547, 582; People v. Johnson, supra, at p. 707; People v. Villanueva (2008) 169 Cal.App.4th 41, 49.) Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. (People v. Benavides (2005) 35 Cal.4th 69, 102; People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.) In deciding whether an instruction is required, a court does not determine the credibility of the defense evidence, but only whether there was evidence which, if credited by the jury, was sufficient to raise a reasonable doubt. (People v. Salas, supra, at p. 982; People v. Villanueva, supra, at p. 49; People v. Cole (2007) 156 Cal.App.4th 452, 484.) We independently review the question of whether the trial court erred by failing to instruct on a defense. (People v. Johnson, supra, at p. 707; People v. Oropeza, supra, at p. 78; cf. People v. Cook (2006) 39 Cal.4th 566, 596.)

CALJIC No. 4.30 provides: "A person who while unconscious commits what would otherwise be a criminal act, is not guilty of a crime. [¶] This rule of law applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the head, the involuntary taking of drugs or the involuntary consumption of intoxicating liquor, or any similar cause. [¶] Unconsciousness does not require that a person be incapable of movement. [¶] Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the commission of the alleged crime for which [he] [she] is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was conscious at the time the alleged crime was committed, [he] [she] must be found not guilty." (Italics added.)
CALJIC No. 431 provides: "If the evidence establishes beyond a reasonable doubt that at the time of the commission of the alleged crime the defendant acted as if [he] [she] were conscious, you should find that [he] [she] was conscious, unless from all the evidence you have a reasonable doubt that the defendant was in fact conscious at the time of the alleged crime. [¶] If the evidence raises a reasonable doubt that the defendant was in fact conscious, you must find that [he] [she] was then unconscious."

The trial court properly declined to instruct with CALJIC No. 4.30 because that instruction pertains only to involuntary intoxication. (See Pen. Code, § 22, subd. (b) ["Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent"].) There was ample evidence Hernandez was intoxicated, but no evidence his intoxication was involuntary. Instead, the evidence showed his intoxication was the result of his heavy drinking. Unconsciousness is a complete defense only when it is not induced by voluntary intoxication. (People v. Rogers, supra, 39 Cal.4th at p. 887; People v. Halvorsen (2007) 42 Cal.4th 379, 417; Pen. Code, §§ 22, 26.)

Hernandez asserts that even though his intoxication was voluntary, the trial court should have modified CALJIC No. 4.30 to apply to voluntary intoxication. He posits that the court was required to inform the jury it "should consider defendant's unconsciousness due to voluntary intoxication in deciding whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime." But this principle was already adequately conveyed to the jury in the instructions given by the court. CALJIC No. 4.21 instructed that if the evidence showed Hernandez was intoxicated at the time of the alleged crime, the jury should consider that fact in deciding whether he had the requisite specific intent. It appears obvious that if the jury believed Hernandez was so intoxicated as to be unconscious, under CALJIC No. 4.21 it would have considered that fact when determining whether Hernandez had the specific intent. While Hernandez is correct that a criminal defendant " 'has the right to instructions that pinpoint the theory of the defense case,' " the "court properly may refuse a proposed instruction . . . when the point is covered in another instruction." (People v. Clark (2011) 52 Cal.4th 856, 975.) A trial court is not obliged to give duplicative instructions. (People v. Bivert (2011) 52 Cal.4th 96, 120; People v. Moon (2005) 37 Cal.4th 1, 30.) Here, the modified instruction suggested by Hernandez was duplicative and therefore unnecessary.

In any event, there was not substantial evidence Hernandez was unconscious. "An unconscious act, as defined 'within the contemplation of the Penal Code is one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional.' " (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1083.) "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.' " (People v. Halvorsen, supra, 42 Cal.4th at p. 417; People v. Rogers, supra, 39 Cal.4th at p. 887; People v. Ferguson, supra, at p. 1083.)

In the instant matter, there was not substantial evidence Hernandez was unconscious, as opposed to merely intoxicated. For example, in People v. Ferguson, supra, 194 Cal.App.4th 1070, the defendant drove while intoxicated, causing an accident that killed another motorist. Ferguson found an unconsciousness instruction was not warranted even though the defendant had drunk excessively throughout the day of his crime, had become increasingly belligerent, fell asleep a few times, and had a blood alcohol level between 0.16 and .21 at the time of the fatal accident. Although the evidence showed his intoxication caused him to make "extremely poor choices, it cannot support a conclusion he was unconscious at the time of the accident or that he lacked awareness of his actions leading up to the accident." (Id. at p. 1084.) Other evidence showed he was attempting to sober up, was focused on getting home, had devised plans to dupe a companion into retrieving his car keys, and drove a substantial distance prior to the accident without incident. (Id. at p. 1085; see also People v. Carlson (2011) 200 Cal.App.4th 695, 704 [unconsciousness instruction unsupported by evidence where intoxicated driver put on her seatbelt, pulled out of a parking stall, drove for miles, applied her brakes before the accident, then climbed out of her vehicle's sunroof, answered an officer's questions, and claimed she had been a passenger, not the driver].)

Similarly, in People v. Halvorsen, supra, 42 Cal.4th at pages 418 to 419, the court found an unconsciousness instruction unwarranted despite evidence that the defendant suffered from bipolar disorder with symptoms exacerbated by intoxication, had "strange sensations" suggestive of an altered state of consciousness immediately before the crime, and had no recollection of aspects of the shooting. (Id. at pp. 417-418.) The "complicated and purposive nature of his conduct" suggested he did not lack awareness of his actions. (Id. at p. 418; see generally People v. Rogers, supra, 39 Cal.4th at pp. 887-888 [defendant's testimony that he had no memory of killing the victim was insufficient to warrant an unconsciousness instruction]; People v. Ochoa (1998) 19 Cal.4th 353, 423-424.)

Here, Hernandez did not testify that he was unaware of his actions. No expert testimony was presented on the point. To the contrary, Hernandez's actions of making a threat, accompanied by a gesture and proclamation of his gang affiliation, then leaving the bar and returning with the machete, suggest purposeful and conscious behavior. (People v. Halvorsen, supra, 42 Cal.4th at pp. 418-419; People v. Carlson, supra, 200 Cal.App.4th at pp. 704-705.) The evidence that Hernandez consumed 20 beers in the three hours preceding the crime, slurred his words, cried, and appeared obviously intoxicated, and that a liquor store clerk refused to sell him alcohol, provided ample evidence he was drunk. Without more, however, this evidence did not suffice to show he was unconscious and unaware of his actions. Because the record lacked substantial evidence that Hernandez was unconscious at the time of the offense, the trial court did not err by declining to give the requested unconsciousness instruction. (People v. Halvorsen, supra, at p. 419; People v. Ferguson, supra, 194 Cal.App.4th at p. 1084.)

People v. Bridgehouse (1956) 47 Cal.2d 406, 410, cited by Hernandez, does not compel a different conclusion. As explained in Halvorsen, Bridgehouse testified his recollection of speaking with the victim just before the shooting was " 'very hazy' "; he had only a " 'very vague memory' " of the victim springing from the couch; the next thing he remembered was "pulling the trigger of his gun on empty cartridges"; and he characterized his action as " 'distorted by a haze of mental void.' " (People v. Halvorsen, supra, 42 Cal.4th at p. 418; People v. Bridgehouse, supra, at p. 410, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89-92.) Thus, unlike in the instant case, Bridgehouse had "testified to a mental state consistent with unconsciousness and with prior statements to police." (People v. Halvorsen, supra, at p. 418; People v. Carlson, supra, 200 Cal.App.4th at p. 705.)

Finally, even if the trial court had erred by failing to give the requested instruction, any error would have been harmless. The jury was instructed that in order to convict Hernandez of making criminal threats, it had to find he had the specific intent that his statement be taken as a threat. (CALJIC No. 9.94.) As set forth ante, the court also instructed that the jury should consider Hernandez's voluntary intoxication insofar as it impacted his ability to form that specific intent. (CALJIC No. 4.21.1.) Defense counsel argued that Hernandez had been so intoxicated that he could not have had the intent to threaten Quintanilla. Had the jury believed Hernandez was so intoxicated that he did not know what he was doing, it could not have found the requisite intent existed. (See People v. Abilez (2007) 41 Cal.4th 472, 516.) Although Hernandez argues that the unconsciousness instruction would have been preferable because it defined "unconsciousness" and would have required the jury to determine, rather than consider, whether his level of intoxication made it impossible for him to form the requisite specific intent, we are not persuaded that these distinctions are significant.

2. The jury instructions given were not ambiguous.

Hernandez further asserts that CALJIC No. 4.21.1 was ambiguous and would have misled the jury. When reviewing a purportedly ambiguous jury instruction, we ask whether there is a reasonable likelihood the jury misconstrued or misapplied the challenged instruction. (People v. Harrison (2005) 35 Cal.4th 208, 251-252; People v. Palmer (2005) 133 Cal.App.4th 1141, 1156.) Without benefit of authority, Hernandez avers that CALJIC No. 4.21.1 "is meant for use when there are both specific and general intent crimes before the jury," and "was not meant for a case such as this in which there was only a specific intent crime." In particular, he contends that the first sentence of the instruction--"It is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition"--would have confused the jury. To the contrary, the challenged language was a correct statement of law. (See Pen. Code, § 22, subd. (a) ["No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition"]; People v. Aguirre (1995) 31 Cal.App.4th 391, 401.) The instruction clearly stated, in the very next sentence, that "there is an exception to this general rule, namely, where a specific intent or mental state is an essential element of a crime." The instruction informed jurors that when a specific intent is required, the jury "should consider the defendant's voluntary intoxication in deciding" whether he possessed the requisite intent. There was nothing unclear or incorrect about the instruction, and no possibility the jury would have been confused.

Because there was no instructional error, Hernandez's due process claim fails. (Cf. People v. Smithey (1999) 20 Cal.4th 936, 982, fn. 11.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.


Summaries of

People v. Hernandez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Feb 9, 2012
No. B228171 (Cal. Ct. App. Feb. 9, 2012)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JONATHAN HERNANDEZ, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Feb 9, 2012

Citations

No. B228171 (Cal. Ct. App. Feb. 9, 2012)