Opinion
F073384
07-26-2017
THE PEOPLE, Plaintiff and Respondent, v. NICOLAS MARTINEZ, Defendant and Appellant.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Gregory B. Wagner, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1449025)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R. Distaso, Judge. Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Gregory B. Wagner, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Nicolas Martinez (defendant) stands convicted, following a jury trial, of first degree burglary (Pen. Code, § 459; count I), grand theft of a firearm (§ 487, subd. (d)(2); count II), possession of a firearm by a person previously convicted of a violent crime (§ 29900, subd. (a); count III), and possession of ammunition by a person prohibited from possessing a firearm (§ 30305, subd. (a)(1); count IV). Following a bifurcated court trial, he was found to have suffered two prior serious felony convictions (§ 667, subd. (a)) and four prior strike convictions (id., subd. (d)). Sentenced to a total of 60 years to life in prison and ordered to pay various fees, fines, and assessments, he now appeals, claiming the trial court erred by refusing to give a modified jury instruction on voluntary intoxication. We affirm.
All statutory references are to the Penal Code.
FACTS
Prosecution Evidence
On August 27, 2012, McKenna Hooker was house-sitting at the Turlock residence of Thomas Reeser. Reeser kept several shotguns and other firearms in a cabinet in his home office. Each had a trigger lock, the keys to which were kept under some books in the same room. Some shotgun shells were in a box beneath the firearms, which were always kept unloaded.
As Hooker left that morning, she saw a man park his bicycle and walk through the gate. Shortly after, the house alarm went off. The police arrived five or 10 minutes later. During that time, Hooker watched the house, but did not see anyone go in or out.
When Turlock Police Officer Higareda arrived, he found a bicycle in the gate to the backyard. The back door to the house appeared to have been forced open, as it was off its hinges. He and Officer Briggs entered with guns drawn. Inside the living/family room, they discovered defendant, who was holding a shotgun without a trigger lock and pointing it in Briggs's direction. When Higareda made eye contact with defendant, defendant said, "Ah, shit," and dropped the weapon, whereupon a shotgun shell flew out of the ejection port. Defendant then turned around and began running toward the front door. He slipped on some clothes and fell, and was taken into custody. Three shotgun shells were found in one of his pockets. He did not have permission to be in the house or take any of the weapons.
Defendant was sweaty and fidgety, and spoke fast and blinked a lot, which Higareda knew to be symptoms of being under the influence of methamphetamine. Defendant's answers to Higareda's questions were appropriate to the questions asked, however, and it appeared to Higareda that he could understand what he was being asked. When Higareda advised defendant of his rights and asked if he understood, defendant said he did. In response to questioning, defendant gave the name Nicolas Martinez, said he did not live at that house, and said he found the shotgun in the home but did not know what he was doing with it. He said he was carrying it, and that it did not belong to him. When Higareda asked what he intended to do with the shotgun, defendant responded, "Man, I see where this is going." When asked how he got into the house, defendant indicated he did not know because he had blacked out.
Defendant was taken to the hospital following his arrest. According to the prosecutor's summation, the nurse's notes — which were admitted into evidence — showed him to be oriented to time, place, and name.
Defense Evidence
Defendant, who had been convicted of four felony crimes of moral turpitude, testified that as of August 27, 2012, he had been homeless for about a year. At the time, he was using recreational drugs, specifically methamphetamine, which was given to him by friends and other people. He last ingested methamphetamine two or three hours before the incident, at which time he had been without sleep for four or five days and continuously using methamphetamine. His last memory, after ingesting the methamphetamine around 6:00 that morning, was being at a park and riding away on his bicycle. After ingesting the methamphetamine, he physically felt like he had a burst of energy. Mentally, he felt like he was going crazy. Everything was blurred, and the next thing he remembered, he was in a house and wearing handcuffs. He did not remember how he got there or having a weapon in his hands or dropping it, and he did not know how the items in his pocket got there. He did not remember what he told police. He had never seen a trigger lock, did not know how one worked, and did not know how a shotgun was loaded.
Higareda had made more than 100 arrests for personal use of methamphetamine, as well as several arrests for possession for sale of the drug. He had never come across a practice of giving away methamphetamine for free.
DISCUSSION
Defendant requested that the court instruct the jury on voluntary intoxication pursuant to CALCRIM No. 3426, modified to read as follows:
"You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence in deciding whether the defendant:
"1. Intended to commit theft when he entered an inhabited dwelling. (Count 1)
"2. Intended to deprive the owner of the firearm permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property. (Count 2)
"3. Did have knowledge he was in possession and control of a firearm[.] (Count 3)
"4. Did have knowledge he was in possession and control of ammunition[.] (Count 4)
"A person is voluntary [sic] 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 Burglary in First Degree the People have the burden of proving beyond a reasonable doubt that the defendant intended to commit theft when he entered an inhabited dwelling. If the [P]eople have not met this burden, you must find the defendant not guilty of a Burglary in the First Degree.
"In connection with the charge of Grand Theft the People have the burden of proving beyond a reasonable doubt that the defendant intended to deprive the owner of the firearm permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property. If the [P]eople have not met this burden, you must find the defendant not guilty of a Grand Theft.
"In connection with the charge of Possession of a Firearm the People have the burden of proving beyond a reasonable doubt that the defendant had knowledge he was in possession and control of a firearm. If the [P]eople have not met this burden, you must find the defendant not guilty of a Possession of a firearm.
"In connection with the charge of Possession of Ammunition the People have the burden of proving beyond a reasonable doubt that the defendant had knowledge he was in possession and control of ammunition. If the [P]eople have not met this burden, you must find the defendant not guilty of a Possession of ammunition.
"You may not consider evidence of voluntary intoxication for any other purpose."
The People objected to the giving of any voluntary intoxication instruction with respect to counts III and IV, on the ground they were general intent crimes and voluntary intoxication could only be considered in conjunction with specific intent offenses. The trial court agreed, and limited consideration of voluntary intoxication to counts I and II. It subsequently instructed jurors that they could consider evidence of voluntary intoxication "only in deciding whether the defendant acted with the intent to do the act required"; with respect to the charge of residential burglary, the People had the burden of proving beyond a reasonable doubt that the defendant acted with the intent to commit theft; with respect to the charge of grand theft, the People had the burden of proving beyond a reasonable doubt that the defendant acted with the intent to deprive the owner of the property permanently; jurors could not consider evidence of voluntary intoxication for any other purpose; and that voluntary intoxication was not a defense to felon in possession of a firearm or felon in possession of ammunition.
Defendant now says the trial court erred by refusing to give the modified instruction so as to permit consideration of voluntary instruction with respect to the knowledge requirement of counts III and IV. We disagree.
Voluntary intoxication is not a defense to a crime. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Rather, it is "relevant only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state." (Ibid.) Accordingly, "[i]t is well settled that '[a]n instruction on the significance of voluntary intoxication is a "pinpoint" instruction that the trial court is not required to give unless requested by the defendant.' [Citation.]" (People v. Verdugo (2010) 50 Cal.4th 263, 295.) If the court does instruct on voluntary intoxication, however, it must do so correctly. (People v. Mendoza (1998) 18 Cal.4th 1114, 1134.) We independently review the legal adequacy of any such instruction. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) If the instruction given was erroneous, "[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.' [Citation.]" (People v. Mendoza, supra, 18 Cal.4th at pp. 1134-1135; see People v. Watson (1956) 46 Cal.2d 818, 836.)
"Evidence of voluntary intoxication is inadmissible to negate the existence of general criminal intent. [Citation.]" (People v. Atkins (2001) 25 Cal.4th 76, 81; see § 29.4, subd. (b) [evidence of voluntary intoxication is admissible solely on issue of whether defendant actually formed required specific intent].) Counts III and IV charged general intent crimes (People v. Snyder (1982) 32 Cal.3d 590, 592), but knowledge of the existence of the object possessed and intentional possession are elements of each offense (ibid.; People v. Jeffers (1996) 41 Cal.App.4th 917, 922; see People v. Rubalcava (2000) 23 Cal.4th 322, 331-332; People v. Gory (1946) 28 Cal.2d 450, 455-456; People v. Osuna (2014) 225 Cal.App.4th 1020, 1029).
In People v. Reyes (1997) 52 Cal.App.4th 975 (Reyes), the Court of Appeal held that the required element of knowledge rendered receiving stolen property a " 'specific intent crime' " for purposes of the applicability of evidence of voluntary intoxication. (Id. at pp. 984-985.) The court stated: "[T]he classification of the crime as one of general intent has nothing to do with the required element of knowledge, a specific mental state. '[I]f a crime requires a particular mental state, the Legislature cannot deny a defendant the opportunity to prove he did not entertain that state.' [Citation.]" (Id. at p. 985.)
Defendant argues the same principles apply in his case; hence, jury consideration of his evidence of intoxication should not have been limited to counts I and II. The Attorney General responds that Reyes is "flawed" and relies on cases that have been superseded by statutory amendment.
We need not decide who is correct, since we are convinced there is no reasonable probability defendant would have achieved a more favorable result had his requested modification of CALCRIM No. 3426 been given. By convicting defendant on counts I and II, the jury necessarily rejected the notion defendant was so intoxicated that he did not form the requisite specific intents. The record contains no evidence from which jurors could have so found, and yet determined defendant lacked the knowledge required for conviction on counts III and IV. Any error was, therefore, harmless. (Cf. People v. Moye (2009) 47 Cal.4th 537, 541; People v. Saavedra (2007) 156 Cal.App.4th 561, 569-570.)
No rational juror could have concluded, for example, that defendant harbored an intent permanently to deprive the owner of the shotgun, yet at the same time did not know the shotgun existed or intend to possess or exercise control over it. --------
DISPOSITION
The judgment is affirmed.