Opinion
D068191
03-30-2017
THE PEOPLE, Plaintiff and Respondent, v. HANS ANTONE PETERSEN, Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD250951) APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted Hans Antone Petersen of two counts of premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 189, 664; counts 1 & 3), one count of shooting at an inhabited dwelling (§ 246; count 4), one count of burglary of an inhabited dwelling when another person, not an accomplice, was present (§§ 459, 460, 667.5, subd. (c)(21); count 5); and one count of drawing or exhibiting a firearm (§ 417, subd. (a)(2); count 6). As to counts 1 and 3 through 5, the jury also found true allegations Petersen personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)).
Further statutory references are to the Penal Code unless otherwise stated.
The jury acquitted Peterson of one count of premeditated attempted murder (count 2).
The court sentenced Petersen to consecutive terms of life with the possibility of parole for counts 1 and 3, plus additional terms of 25 years to life for each of those counts for the attendant firearm discharge enhancements. The court imposed and stayed sentences for counts 4 and 5 under section 654 and sentenced Petersen to time served for count 6.
Petersen appeals, contending we must reverse the judgment because the court refused to instruct the jury on the defenses of involuntary intoxication and unconscious by involuntary intoxication. Petersen alternatively contends we must reverse his convictions for attempted murder and burglary because the court failed to instruct the jury on the defense of voluntary intoxication. We are unpersuaded by these contentions and affirm the judgment.
II
BACKGROUND
Key Prosecution Evidence
Counts 1 and 4
In the early hours of the morning, Petersen drove approximately eight miles to the home of a former business associate. He went over or through the home's back gate and fired multiple gunshots into French doors leading to the business associate's bedroom. One of the gunshots hit the business associate's right flank. When Petersen attempted to reload his gun, the business associate stepped out of the home and lunged toward Petersen, who escaped through an alley.
Petersen had once been friends with the business associate, but their friendship ended after the board of directors of the business associate's company discharged Petersen from his position as the company's chief executive officer. After his discharge and until five or six weeks before the shooting, Petersen sent hostile e-mails to the business associate accusing the business associate of malfeasance at the company, which had since dissolved.
Count 6
A couple of hours later, in the same general area, a man was driving home after work when he saw Petersen run and hide behind a tree. The man drove to Petersen's hiding place to investigate. As the man leaned toward the passenger side window of his car to say something to Petersen, Petersen stepped out from behind the tree and pointed a gun at the man, who immediately drove away.
Counts 3 and 5
Another couple of hours later, again in the same general area, Petersen went to the home of a man and stood in the man's gated side yard looking through the window. The man saw Petersen holding what looked to be a gun or drill in his right hand. Petersen told the man he was meeting his (Petersen's) estranged wife's brother (his brother-in-law). The man told Petersen his brother-in-law did not live there. When Petersen asked whether his brother-in-law lived next door or two doors down, the man told Petersen his brother-in-law did not live in the area and Petersen quickly walked away.
Shortly afterwards, Petersen threw a large rock through the front window of his brother-in-law's home, went inside, and loudly knocked on the door of the bathroom where his brother-in-law was showering. When his brother-in-law opened the door, Petersen pointed a gun at him. His brother-in-law quickly closed and locked the door.
Peterson began banging on the door, yelling, "Open this f--king door," "I'm going to kill you," "You [have] $120,000 in your safe," and "Open your f--king safe." Peterson said he was going to count to three. His brother-in-law heard him say, "one," and "two." Then, Petersen fired two gunshots through the bathroom door. His brother-in-law opened the door, grabbed the gun, and tried to turn it toward the floor; however, Petersen fired the gun and shot his brother-in-law in the stomach.
In the hallway outside the bathroom, his brother-in-law wrestled Petersen to the ground and took the gun away. His brother-in-law pointed the gun at Petersen and pulled the trigger, but the gun would not fire. His brother-in-law then tried to keep Petersen away by swinging the gun at him.
His brother-in-law ran past Petersen to the kitchen to get a phone. Peterson chased his brother-in-law through the home and then outside. After some further struggle outside, his brother-in-law went back inside the home and called 911. His brother-in-law left the phone on the kitchen counter in speakerphone mode and continued to relay information to the 911 operator. Peterson took the phone off the counter and tried to smash it. His brother-in-law retrieved the phone, collapsed on a nearby couch, and called 911 again. Moments later, police officers arrived and arrested Petersen while Petersen screamed at his brother-in-law, calling his brother-in-law a liar and claiming his brother-in-law had ruined him and stolen from him.
Petersen's brother-in-law is an experienced realtor. When Petersen's estranged wife commenced divorce proceedings, his brother-in-law advised Petersen's wife to sell certain real property she and Petersen had purchased during their marriage. Petersen subsequently showed up at an unrelated open house hosted by his brother-in-law looking angry. He also showed up at his brother-in-law's office and demanded he stop trying to sell the property, although his brother-in-law did not have the listing. The property sold and went into escrow a few weeks before the shooting. The sale became final several weeks after the shooting.
Officers searched Petersen and found a box of bullets, a gun magazine and an adjustable wrench in his jacket pocket. Officers located Petersen's car parked halfway between his former business associate's home and his brother-in-law's home, which were less than two miles apart. Inside the car, police found a metal lockbox for the gun, two .45-caliber bullets, a partial box of ammunition, and a box containing thousands of pages of highly organized documents, most of which related to Petersen's divorce.
Key Defense Evidence
At the time of his crimes, Petersen was prescribed and taking several medications, including an antiseizure medication, an antidepressant medication, a weight loss medication, a sleep aid, and an antibiotic. According to Petersen's doctor, a combination of alcohol and the antiseizure medication is sedating and can cause grogginess, fatigue and confusion. Likewise, a combination of alcohol and the sleep aid can lead to further sedation, confusion, and erratic behavior.
Petersen typically took the antidepressant in the morning and the other medications in the evening. Although his prescription for the antiseizure medication called for him to take one tablet four times a day, he took all four at night to help him sleep and to reduce daytime grogginess.
The evening before the shootings, Petersen and his girlfriend met friends at a restaurant where Petersen drank two glasses of wine. Petersen later went to his girlfriend's home where he made a pitcher of vodka and lime juice. He poured some of the mixture into a glass for himself, which he remembers starting, but does not remember finishing. Petersen's girlfriend gave him his nighttime medications and then went to bed while he worked on the computer. He joined her in bed an hour and a half later. A couple of hours later, she woke up and realized he was not in bed. His car was gone and he was not answering his cell phone, which she later discovered he had left at her home.
Petersen had a clear memory of the evening up until he took his nighttime medications. His memory of what occurred after that was "blocky." He remembered going to bed. His next clear memory was being in his brother-in-law's house and his brother-in-law hitting him over the head. He denied consciously harming his former business associate, his brother-in-law, or their families.
Petersen acquired the gun for self-defense purposes five months before the shootings. He kept the gun in a case in the trunk of his car and had never previously fired it.
According to a forensic psychiatrist, the antidepressant, weight loss medication, sleep aid, and antibiotic can each cause seizures and are contraindicated for people taking the antiseizure medication. Using alcohol with these medications can also cause seizures. In addition, taking the sleep aid with alcohol may cause confusion and unpredictable behavior. Taking the five medications in combination with alcohol "would be very likely to trigger a seizure in someone with a seizure disorder."
A seizure can cause severe confusion. A person experiencing confusion from a seizure may not know they are drinking alcohol or have had too much of it. A severely intoxicated person experiencing a partial complex seizure would still be able to walk, drive a car and perform divided attention tasks.
Toxicology screens showed that, at the time of his crimes, Petersen had not taken his antiseizure medication recently and his blood-alcohol level was at least .21. In response to hypothetical questions, the forensic psychiatrist testified a person with a seizure disorder who had not taken the antiseizure medication but who had taken one or more of the other prescribed medications would be at high risk to have a seizure and the seizure would likely be more severe and result in more confusion than usual. The seizure could also cause delirium and unconsciousness, but the person could still perform day-to-day activities, including walking, running and driving a car.
Key Prosecution Rebuttal Evidence
The emergency room doctor who treated Petersen after his crimes testified Petersen was awake and oriented; however, because he was so distraught at the fact someone had hit him with a gun, he had difficulty focusing and delineating his injuries for the doctor. His blood-alcohol level was .21 when he was in the emergency room and would have been significantly higher at the time he committed his crimes. Despite his intoxication, he performed well on a neurological screening exam and was able to follow directions and commands. He was also able to answer questions coherently and comprehensively. A CAT scan showed nothing wrong inside his brain.
A forensic toxicologist screened blood and urine samples taken from Petersen at the hospital. The blood screen detected the presence of an antiseizure medication as well as the antidepressant and an antianxiety medication. The screen did not detect the presence of the sleep aid and the weight loss medication. The screen did not analyze for the presence of the antibiotic.
A criminalist who performed blood-alcohol testing on Petersen's blood testified Peterson's blood-alcohol level was between .23 and .28 at the time of his encounter with his former business associate. It was at least .18 at the time of his encounter with his brother-in-law.
A neurologist testified a partial seizure is a seizure occurring in a limited portion of the brain. A partial seizure will alter consciousness in varying amounts. A person experiencing a partial seizure may not look unconscious; however, the person's cognitive function will be altered causing the person's thinking and behaviors to be different than normal.
A person experiencing a complex partial seizure typically has a behavior arrest, starts staring off into space, and engages in automatic behaviors, such as lip smacking. The antiseizure medication and the sleep aid suppress seizures. In addition, alcohol strongly suppresses seizures. The antidepressant can cause seizures and the other medications prescribed to Petersen can make it easier to have a seizure.
In response to hypothetical questioning, the neurologist opined a person in the midst of or in the immediate aftermath of a partial complex seizure is typically unable to engage in goal-oriented activity, including driving a car eight miles, climbing over a fence or gate, loading or cocking a gun, hiding behind a bush from someone, picking up a rock and throwing it through a window, smashing a cell phone, or physically struggling with someone for several minutes. The person may "repeatedly say the same word over and over again, or [the person will] answer exceptionally simple questions with a yes or no but nothing more complicated than that."
Similarly, a person who becomes unconscious from alcohol intoxication is no longer aware of or able to interact with the person's environment and would appear to be asleep. Such a person is unable to perform such tasks as driving eight miles, reloading a firearm, or struggling with another person for a couple of minutes.
Conversely, a person experiencing an alcoholic blackout may be able to engage in sophisticated goal-oriented tasks, including driving a car, because an alcoholic blackout does not alter a person's level of unconsciousness or cognitive functions. An alcoholic blackout only affects whether the person can generate new memories.
III
DISCUSSION
A
1
During the jury instruction conference, Peterson's counsel requested and the court instructed the jury on the defense of unconsciousness with CALCRIM No. 3425, including unconscious by involuntary intoxication. Defense counsel also requested the court instruct the jury on the defense of involuntary intoxication with CALCRIM No. 3427. Defense counsel argued these instructions were appropriate because there was evidence Petersen may have had a seizure, which may have caused him to become confused and consume mass quantities of alcohol without knowing what he was doing.
Without any case-specific tailoring, CALCRIM No. 3425 provides, "The defendant is not guilty of <insert crime[s]> if (he/she) acted while unconscious. Someone is 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[,]/ [or] an epileptic seizure[,]/ [or] involuntary intoxication[,]/ [or] <insert a similar condition>). [¶] [The defense of unconsciousness may not be based on voluntary intoxication.] [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when (he/she) acted. If there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious, unless based on all the evidence, you have a reasonable doubt that (he/she) was conscious, in which case you must find (him/her) not guilty."
Without any case-specific tailoring, CALCRIM No. 3427 provides, "Consider any evidence that the defendant was involuntarily intoxicated in deciding whether the defendant had the required (intent/ [or] mental state) when (he/she) acted. [¶] A person is involuntarily intoxicated if he or she unknowingly ingested some intoxicating liquor, drug, or other substance, or if his or her intoxication is caused by the (force/[, [or] duress/, [or] fraud/, [or] trickery of someone else), for whatever purpose[, without any fault on the part of the intoxicated person]."
The court ultimately agreed to instruct the jury on the defense of unconsciousness by blackout or seizure. The court declined to instruct the jury on the defenses of involuntary intoxication or unconsciousness by involuntary intoxication, finding there was no evidence in the record to support an argument Petersen's intoxication was involuntary.
2
Defense counsel also requested the court instruct the jury on the defense of voluntary intoxication with CALCRIM No. 3426, which the court was willing and prepared to do. However, defense counsel later informed the court Petersen insisted on withdrawing the instruction, despite defense counsel's contrary advice.
Without any case-specific tailoring, CALCRIM No. 3426 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 [or failed to do an act] with <insert specific intent or mental state required, e.g., "the intent to permanently deprive the owner of his or her property" or "knowledge that ... " or "the intent to do the act required">. [¶] 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 <insert first charged offense requiring specific intent or mental state> the People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with <insert specific intent or mental state required, e.g., "the intent to permanently deprive the owner of his or her property" or "knowledge that ... ">. If the People have not met this burden, you must find the defendant not guilty of <insert first charged offense requiring specific intent or mental state>. [¶] . . . [¶] You may not consider evidence of voluntary intoxication for any other purpose. [Voluntary intoxication is not a defense to <insert general intent offense[s]>.] --------
In response to this information, the court addressed Petersen:
"Well, Mr. Petersen, you understand that if [defense counsel] neglected to ask for that instruction under the circumstances of this case, it very well could be argued that it was ineffective assistance of counsel and not to make that recommendation to the Court.
"He's made that recommendation consistent with what the evidence may seem to suggest, and you're asking to have it withdrawn. The implications of that is that you will forgo any right to appeal that issue to argue on appeal that that instruction should or should not have been given because he is advising you that it should be given, but over his advice you're requesting that it not be given.
"And I need to make sure you understand that you'll be waiving any appellate rights on that issue if that is your demand and your request. If it is, the Court's prepared to follow it. It is your case. And if you believe it to be inconsistent with your defense, then I will not give that instruction. [¶] So is that what you're requesting of the court, sir?"
Petersen unequivocally replied, "Yes, your honor."
The court then indicated it would not give the CALCRIM No. 3426 instruction, but would nonetheless instruct the jury on the definition of voluntary intoxication for purposes of the CALCRIM No. 3425 instruction.
The following day, the court revisited the issue and defense counsel confirmed Petersen wished to withdraw the voluntary intoxication instruction against legal advice. The court noted for the record:
"In this case because, [defense counsel], you through your training and experience and advice to your client believes that [the instruction] should be given but your client is objecting to it—it's a first for this Court, and so I'm not prepared to say how an appellate court may view that. If the Court does not instruct, is that error given that counsel would prefer it. But I trust that you in consultation with your client [are] prepared to consent to your client's request. And you're not asking the Court to give it over your client's objection to it." (Italics added.)
Defense counsel did not contest the court's impression and the court went on to ask Petersen, "Are you objecting to the Court instructing on voluntary intoxication as a possible defense to the specific intent and mental state charges in this case?" Petersen unequivocally replied, "Yes, your honor." The court then stated it would not instruct the jury on voluntary intoxication as a defense to any of the charges in the case and would instead inform the jury voluntary intoxication is not a defense.
3
The court subsequently instructed the jury with a tailored version of CALCRIM No. 3425 as follows:
"The defendant i[s] not guilty of the crimes charged if he acted while unconscious. Someone is 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, or epileptic seizure.
"The defense of unconsciousness may not be based on voluntary intoxication. 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.
"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, unless based on all the evidence, you have a reasonable doubt that he was conscious, in which case you must find him not guilty."
B
Petersen contends we must reverse the judgment because the court prejudicially erred by failing to instruct the jury on the related defenses of involuntary intoxication and unconsciousness by involuntary intoxication. "A trial court must instruct the jury, upon request, on any theory of defense that is supported by substantial evidence. [Citation.] We independently review a trial court's alleged failure to do so." (People v. Sisuphan (2010) 181 Cal.App.4th 800, 806.)
Section 26 provides in part: "All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Three--Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent. [¶] Four--Persons who committed the act charged without being conscious thereof." Although involuntary intoxication is commonly asserted as a cause of unconsciousness under section 26, subdivision Four (e.g., People v. Mathson (2012) 210 Cal.App.4th 1297, 1314-1315 (Mathson)), some courts have allowed it to be asserted as a cause of mistake of fact under section 26, subdivision Three (e.g., People v. Scott (1983) 146 Cal.App.3d 823, 831-832 (Scott)). Regardless of the context, involuntary intoxication occurs "where the intoxication is induced through the fault of another and without any fault on the part of the accused." (People v. Velez (1985) 175 Cal.App.3d 785, 796; accord, People v. Gallego (1990) 52 Cal.3d 115, 183.) It is a complete defense to a crime. (Mathson, supra, at p. 1313; see, e.g., Scott, supra, at pp. 831-832.)
In this case, Petersen requested the court instruct the jury on involuntary intoxication under the theory he became unconscious from a seizure and, while unconscious, he unknowingly drank excessive amounts of alcohol, causing him to become unconscious from involuntary intoxication. In other words, he requested the instruction under the theory he was successively or concurrently unconscious from different means.
This theory blurs the distinction between voluntary and involuntary intoxication. (See Mathson, supra, 210 Cal.App.4th at p. 1316.) In addition, Petersen has not identified nor have we located any authority supporting it.
Moreover, we agree with the trial court the theory's foundation lacks adequate evidentiary support to warrant instructing the jury on it. The theory rests on evidence Petersen consumed two to three alcoholic drinks the evening before his crimes, he prepared and had access to a pitcher of vodka and lime juice at his girlfriend's home, he lacked any memory of the events occurring between when he went to bed and when police arrested him at his brother-in-law's house, he had a high blood-alcohol level at the time of his crimes, and, according to the forensic psychiatrist, it is possible for a person experiencing a seizure to unknowingly consume excessive amounts of alcohol.
Missing from this foundation is expert evidence a person could be successively or concurrently unconscious from different means. Also missing from this foundation is expert evidence a person successively or concurrently unconscious from different means is capable of performing the goal-oriented actions underpinning Peterson's crimes. Neither party's experts were directly asked these questions and the only indirect evidence on these points came from the neurologist who indicated a person experiencing successive, or cluster seizures, is not able to engage in goal-oriented behavior and usually requires intensive care medical treatment. Accordingly, Petersen has not established the court erred in failing to instruct the jury on the theory.
Even if Petersen's theory had adequate evidentiary support and the court had erred in failing to instruct the jury on it, Petersen has not established the error prejudiced him. The theory required the jury to make a threshold determination Petersen had a seizure, which rendered him unconscious. The court instructed the jury on this predicate and the jury necessarily rejected it to reach the verdicts in this case. Therefore, we conclude any error in failing to instruct the jury on the theory was harmless under any standard as there is no reasonable possibility the error affected the jury's verdict. (See Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct 824, 17 L.Ed.2d 705]; People v. Watson (1956) 46 Cal.2d 818, 836.)
C
1
Petersen alternatively contends we must reverse his attempted murder and burglary convictions because the court prejudicially erred by acquiescing to his request to withdraw the voluntary intoxication instruction. Unlike involuntary intoxication, voluntary intoxication is only a partial defense. It may negate express malice or a required specific intent, but it cannot completely relieve a defendant of criminal liability. (§ 29.4; People v. Boyer (2006) 38 Cal.4th 412, 469; People v. Timms (2007) 151 Cal.App.4th 1292, 1298.)
Absent a defense request, the court has no sua sponte duty to give a voluntary intoxication instruction. (People v. Verdugo (2010) 50 Cal.4th 263, 295; People v. Saille (1991) 54 Cal.3d 1103, 1121.) Although the court in this case was willing and prepared to give a voluntary intoxication instruction, Petersen repeatedly and unequivocally withdrew his request for the instruction. The court was not required to second-guess Petersen's decision. (People v. Hughes (2002) 27 Cal.4th 287, 345-346.) Accordingly, Petersen has not established the court erred by failing to give the instruction.
2
Petersen next contends defense counsel provided ineffective assistance by impliedly agreeing to the withdrawal of the voluntary intoxication instruction without any rational tactical purpose for doing so. On this record, we cannot agree.
A defendant who claims his counsel's inaction violated his constitutional right to the effective assistance of counsel "bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (People v. Centeno (2014) 60 Cal.4th 659, 674, citing Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Ledesma (2006) 39 Cal.4th 641, 746; People v. Ledesma (1987) 43 Cal.3d 171, 216, 218.) "If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
" 'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." ' [Citations.] When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission.' " (People v. Centeno, supra, 60 Cal.4th at pp. 674-675.)
Here, in deciding not to insist on having the court instruct the jury on voluntary intoxication over Petersen's objection, counsel could have reasonably believed a voluntary intoxication instruction undermined or conflicted with the defense theory Petersen acted unconsciously while in a seizure state. (People v. Wader (1993) 5 Cal.4th 610, 643 [court cannot conclude defense counsel had no rational tactical purpose for requesting a voluntary intoxication instruction where the instruction would have been inconsistent with defendant's theory of the case]; see People v. Jones (1991) 53 Cal.3d 1115, 1138 ["The presentation of conflicting defenses is often tactically unwise because it tends to weaken counsel's credibility with the jury"].) Without the voluntary intoxication instruction, the jury's attention was focused on the complete defense of unconsciousness. Thus, Petersen has not established defense counsel's decision not to oppose the withdrawal of the voluntary intoxication fell outside the boundaries of reasonable professional assistance. (People v. Vines (2011) 51 Cal.4th 830, 876.)
IV
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: HALLER, J. AARON, J.