Opinion
E065108
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW EARLY ROBINSON, Defendant and Appellant.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore Cropley, and Ryan H. Peeck, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1401557) OPINION APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge. Affirmed. Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore Cropley, and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Matthew Early Robinson robbed a business owner and employee at gunpoint. While fleeing from law enforcement in his car, defendant crashed and was severely injured. Defendant claims to have suffered amnesia, preventing him from remembering anything about the charged crimes.
Defendant appeals from judgment entered following jury convictions for two counts of robbery (Pen. Code, § 211 ; counts 1 and 2). The jury also found true as to both counts, enhancements that defendant personally used a firearm (§§ 1192.7, subd. (c)(8); 12022.53, subd. (b).) The court dismissed count 3, grand theft of a firearm (§ 487, subd. (d)(2)), and count 4, receiving stolen property (§ 496, subd. (a)). Defendant was sentenced to 12 years in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court erred in failing to suspend the court proceedings and order a competency evaluation for defendant. Defendant also contends the trial court abused its discretion by denying his Marsden request for a new attorney. Defendant further argues the trial court erred in not giving an instruction on unconsciousness, and defendant asserts his amnesia deprived him of his due process rights to effective assistance of counsel and a fair trial. We reject these contentions and affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118.
II
FACTS
On April 2, 2014, around 9:30 a.m., the owner of Pacific Sun Technologies (Owner) and an employee (Employee) were sitting at their desks, when Owner noticed defendant park his car in front of Owner's office and approach Pacific Sun Technologies. Defendant was wearing a red hoodie and blue jeans. A do-rag covered his nose and mouth.
A do-rag is a piece of cloth, which is normally wrapped around the head and tied in the back. (People v. Sanford (2017) 11 Cal.App.5th 84, fn. 11.) --------
Defendant entered the Pacific Sun Technologies office, closed the door behind him, pulled a gun out of his waistband, and pointed the gun alternatively at the Owner and Employee. Defendant demanded Owner and Employee give him "all the money," while pointing his gun at them. Defendant said no one would be hurt if they complied. Defendant added, "I'm sorry. I just need money for my kids."
Owner handed defendant his wallet and his money clip containing hundreds of dollars. Employee handed defendant cash from her purse and said, "'[T]ake it. Please go.'" After defendant left, Employee called 911. Owner went to the front window and watched defendant get into his car. Defendant then got out of his car and approached the office again. Owner locked the front door of the office. Because the front door did not always lock securely, Owner and Employee ran to the back office and locked the door. They heard someone jiggling the front door handle. Both Owner and Employee called 911.
Deputy Sheriff Narcisco responded to the dispatch call, which reported a robbery had been committed by a Black male, wearing a red hoodie, and carrying a handgun. While on the way to the crime scene, Narcisco saw defendant in a black Chevy Malibu without license plates, about to turn onto the freeway. Narcisco followed defendant onto the freeway.
Although Narcisco did not pull defendant over, defendant voluntarily stopped on the shoulder of the freeway. Narcisco also pulled over, about 20 to 25 feet behind defendant, and got off his motorcycle. Defendant looked at Narcisco. He appeared surprised. Narcisco told defendant to put his hands up. Defendant said, "What did I do?" Narcisco said, "'put your hands up and face away from me.'" Narcisco drew his firearm. Defendant said, "'oh, shit,'" and sped away.
As Narcisco attempted to catch up with defendant, defendant crashed, totaling his car. Narcisco saw a plume of smoke coming from defendant's car, which had overturned and was hanging on the freeway embankment. Defendant was ejected from his car and lay face down on the concrete below.
Deputy Sheriff Kuhn was dispatched to the scene. Upon arrival, he saw defendant face down. He appeared to be unconscious. Defendant was severely injured and unable to speak at the accident scene. Deputies recovered the loaded gun used in the robbery from defendant's car, $590, and Owner's money clip.
Defendant's Testimony
During the trial, defendant testified to the following. He joined the Marines in 2009. He served as a military police officer, and was trained to secure bases in Afghanistan. Defendant served in Afghanistan for 13 months, beginning in May 2010. After returning from Afghanistan, he served the remainder of his active duty contract (two years two months) as a military police officer in this country. Defendant was honorably discharged in 2013. Defendant believed his mental state was different when he returned from Afghanistan. He was shaken by loud sounds, which he would associate with memories of things he experienced in Afghanistan. He had nightmares and panic attacks, and was moody. This persisted after he was discharged from the Marines. Defendant did not seek mental health treatment because he feared he would be diagnosed with a mental condition which would prevent him from civilian employment in law enforcement or security.
Defendant testified he did not remember anything that happened on the day of the crimes, up until after he woke up in the hospital. He did not remember the victims of the charged crimes or of being at Pacific Sun Technologies. Defendant had no memory of the charged crimes, acts committed in preparation for the crimes, or acts committed afterwards, including fleeing from law enforcement and crashing. Defendant could not deny he committed the charged crimes because he had no memory of the incident. Defendant did not have any criminal record before the charged crimes.
Defendant was separated from his wife, had one child, was unemployed, and was living with a friend. Defendant was aware that on April 2, 2014, he was in a serious car accident, in which he was ejected from his car, severely injured, and placed in a medically-induced coma.
III
COMPETENCY
Defendant contends the trial court violated his due process rights by not sua sponte suspending the court proceedings and ordering a competency evaluation for defendant. Defendant argues that during the Marsden hearing, there was substantial evidence creating a reasonable doubt as to whether defendant was mentally fit to stand trial. A. Marsden Hearing
During a pretrial Marsden hearing on September 21, 2015, defendant requested a new attorney. Defendant stated he did not want his current attorney, Mr. Borrego, to represent him because, although he was "pretty good at his job," defendant did not feel confident that Borrego was ready for trial. Defendant believed Borrego had not had sufficient time to prepare for trial. Defendant noted he had had at least six public defenders represent him, with Borrego substituting in on August 17, 2015. Defendant had met with Borrego only once outside of court.
Defendant also believed Borrego was not making a sufficient effort to explain to defendant what defendant needed to know in preparation for trial. Borrego had not told him who would be testifying on his behalf or discussed the defense strategy. Defendant was not confident that Borrego would zealously represent him. Defendant said he was concerned because defendant was facing at least 10 years in prison. When asked, defendant said he was unable to state any specific instances in which Borrego had acted inappropriately, other than not returning his call. Defendant stated that it was not until two weeks after defendant called and left a message with the public defender to call, that he finally met with Borrego for the first time.
Borrego stated at the Marsden hearing that he had been an attorney for 30 years, which included practicing as a deputy district attorney and public defense attorney, representing over a couple thousand clients. He participated in over 80 jury trials, was involved in over a thousand motions, and had handled numerous types of criminal matters. Borrego began representing defendant in August. Borrego read the notes provided by defendant's previous attorneys on the case.
Borrego told the court he had made several attempts to meet with defendant but defendant told Borrego he was unable to meet with Borrego because he had to work. They finally met, along with the defense investigator, and talked for about an hour. Borrego explained every aspect of defendant's case to him. Defendant told Borrego he could not assist with contacting people who could help with the defense because he did not remember anything about the incident. Defendant provided names of potential witnesses who were contacted, including defendant's wife. Borrego told defendant they needed to meet again before the next court appearance and asked defendant to call Borrego to make an appointment. Defendant agreed to call but did not do so. Borrego did not hear from defendant again until he arrived at the courthouse for the Marsden hearing.
Borrego stated that, in preparation for trial, he had attempted to obtain as much information from defendant as possible. Borrego believed the charged crimes were a result of defendant suffering from posttraumatic stress disorder (PTSD) from his military service. Defendant was never examined for PTSD, and there were no medical records establishing PTSD. Borrego told the court, "[W]e know something is wrong, but there's no information." Defendant had told Borrego that he was a security officer in the military and would not be considered for civilian employment as a law enforcement officer if he disclosed he had had a psychiatric evaluation for PTSD. This was why defendant did not seek treatment for PTSD. Borrego concluded defendant's history indicated defendant "at certain points . . . blanks out and just does not have a response to certain things." Borrego said that defendant seemed unable to prioritize what was most important in his life. Borrego said this was apparent from defendant's failure to call Borrego to meet again. Borrego told the court, "I am certain he does suffer from some psychiatric disorder. We have no medical evidence of it today."
Based on defendant's and Borrego's statements made during the Marsden hearing, the trial court found that Borrego had properly represented defendant and would continue to do so. The court therefore denied defendant's Marsden request for a new attorney. B. Competency Standard
Under section 1367, subdivision (a), a defendant "cannot be tried or adjudged to punishment . . . while that person is mentally incompetent." "A defendant is mentally incompetent if, as a result of a mental disorder, he is unable to understand the nature and purpose of the criminal proceedings taken against him, does not comprehend his own status and condition in reference to such proceedings, or is unable to assist counsel in the conduct of a defense in a rational manner. [Citations.] The applicable statutes and case law embody the constitutional right of every accused to a fair trial that is part of the Fourteenth Amendment's due process requirement. [Citation.]" (People v. Amador (1988) 200 Cal.App.3d 1449, 1453.) "[T]he United States Supreme Court has itself used a formulation similar to California's to describe the standard of competency. (Godinez v. Moran (1993) 509 U.S. 389, 402 ['Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel.'].)" (People v. Jablonski (2006) 37 Cal.4th 774, 808.) A defendant is presumed mentally competent until proven otherwise by a preponderance of the evidence. (§ 1369, subd. (f); Amador, at p. 1453.) C. Sua Sponte Duty to Order Competency evaluation
Section 1368 requires the trial court to initiate proceedings sua sponte to determine a defendant's present mental competence if "a doubt arises in the mind of the judge as to the mental competence of the defendant" or "[i]f counsel informs the court that he or she believes the defendant is or may be mentally incompetent." (§ 1368, subds. (a), (b).) "If a defendant presents substantial evidence of his lack of competence and is unable to assist counsel in the conduct of a defense in a rational manner during the legal proceedings, the court must stop the proceedings and order a hearing on the competence issue." (People v. Ramos (2004) 34 Cal.4th 494, 507.) Defendant's competency may be determined whenever the competence issue arises, at any point in the proceedings. (Ibid.) The court's decision whether to grant a competency hearing is reviewed under an abuse of discretion standard. (§ 1368; Ramos, at p. 507.)
Substantial evidence of incompetence may be founded on a defendant's own behavior or expert testimony by a psychiatrist or psychologist who has examined the defendant. (People v. Ramos, supra, 34 Cal.4th at p. 507) If a defendant "presents merely 'a litany of facts, none of which are actually related to his competence'" at the time of trial, the evidence will be inadequate to support holding a competency hearing. (Id. at p. 508.) "In other words, a defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel." (Ibid.) D. Analysis
Defendant has not provided substantial evidence that, at the time of the Marsden hearing, he demonstrated an inability to understand the proceedings or assist counsel in conducting his defense in a rational manner during the legal proceedings. (People v. Ramos, supra, 34 Cal.4th at p. 507; People v. Jablonski, supra, 37 Cal.4th at p. 808.) The court therefore was not required to stop the proceedings and order a competency evaluation for defendant. (Ramos, at p. 507.) Even though defendant had no memory of the charged crimes because of suffering amnesia from the car crash, the record demonstrates that defendant was nevertheless capable of understanding the nature and object of the criminal proceedings. He demonstrated during the Marsden hearing that he was aware of the charges, their seriousness, and the potential penalty if he was found guilty.
Defendant argues that the trial court should have ordered a competency evaluation based on his attorney's comments made during the Marsden hearing, which included his attorney mentioning that defendant suffered from amnesia and PTSD or some other psychiatric disorder. As to amnesia, "[a]lmost universally, the courts agree that amnesia in and of itself does not render a defendant incapable of standing trial, of receiving a fair trial, or of assisting his counsel in the defense of his case." (People v. Amador, supra, 200 Cal.App.3d at p. 1453.) This is because "[t]he amnesic defendant is no worse off than the defendant who cannot remember where he was on a particular day because of the passage of time, or because he was drunk, drugged, unconscious or asleep at the time of the crime." (Id. at p. 1454.) In addition, "amnesia does not inhibit discussion between attorney and client as to tactical decisions concerning the trial." (Ibid.)
Although amnesia is a factor to be considered in determining whether a defendant can receive a fair trial, memory impairment, standing alone, is not sufficient to establish mental incompetency. (People v. Amador, supra, 200 Cal.App.3d at p. 1454; People v. Jablonski, supra, 37 Cal.4th at p. 809.) "[T]he fundamental fairness of trying an amnesic defendant may vary depending upon the crime and the circumstances surrounding the claimed loss of memory. Accordingly, the propriety of trying an amnesic defendant should be determined on a case-by-case basis." (Amador, at p. 1455.)
Defendant argues that, in addition to not remembering the charged crimes, his attorney, Borrego, informed the court during the Marsden hearing that Borrego believed defendant suffered from PTSD or some other psychiatric disorder, which affected defendant's ability to assist in his defense. According to Borrego, defendant was unable to follow instructions, follow through on requests, and "blanked out" during conversations. There was no evidence that these problems or any other mental disorders prevented defendant from assisting with his defense. Furthermore, Borrego did not request a competency evaluation during the Marsden hearing.
In addition, the transcript of the Marsden hearing reflects that, during defendant's discussion of the proceedings, defendant was mentally lucid, focused, rational, knowledgeable of the court proceedings, aware of the seriousness of the charges, and fully capable of discussing legal issues with the court and his attorney. Defendant therefore has not established that, at the time of the Marsden hearing, a reasonable judge would have experienced a reasonable doubt as to defendant's mental competence or ability to assist his attorney. (§ 1368; People v. Howard (1992) 1 Cal.4th 1132, 1163-1164.) E. Due Process Rights to a Fair Trial and Effective Representation
Citing People v. Amador, supra, 200 Cal.App.3d 1449, defendant contends his attorney abandoned his sole defense of unconsciousness based on his amnesia, and this deprived him of his due process rights to a fundamentally fair trial and effective assistance of counsel. Defendant argues that his mental health problems, including PTSD, and his loss of memory of everything that happened on the day of the charged crimes, up until he regained consciousness in the hospital, prevented him from assisting his attorney in preparing a meaningful defense. Defendant maintains that his amnesia "locked in" information critical to his defense by preventing him from establishing that he was unconscious or unaware of his acts when he committed the crimes. He was also prevented from establishing the reason for his unconsciousness during the crimes.
But there is no evidence defendant was unaware or unconscious when he committed the crimes. And as stated in Amador, "amnesia does not inhibit discussion between attorney and client as to tactical decisions concerning the trial. [Citation.] [¶] Amnesia as to the alleged offense does not totally incapacitate the defense and a defendant is still free to assist counsel in numerous other ways. A defendant is entitled to a fair trial, not necessarily a perfect trial." (People v. Amador, supra, 200 Cal.App.3d at p. 1454.)
The record shows defendant received a fair trial and effective representation. There was ample reliable evidence establishing the circumstances of the crimes, and demonstrating that defendant was capable of assisting his attorney, even though he could not remember what happened during commission of the crimes. As noted in Amador, "If the defendant's condition of amnesia is permanent, to hold that amnesia renders a defendant incapable of standing trial would require courts to hold that amnesia will completely negate all criminal responsibility and 'will turn over the determination of crime and criminal liability to psychiatrists, whose opinions are usually based in large part upon defendant's self-serving statements, instead of to Courts and juries, and . . . will greatly jeopardize the safety and security of law-abiding citizens and render the protection of Society from crime and criminals far more difficult than ever before in modern history.'" (People v. Amador, supra, 200 Cal.App.3d at pp. 1454-1455.) We conclude there was no error in the trial court not sua sponte ordering a competency evaluation for defendant, nor due process violations of defendant's due process rights to a fair trial or effective representation.
IV
MARSDEN HEARING
Defendant contends the trial court erred in denying his request for substitution of counsel under People v. Marsden, supra, 2 Cal.3d 118. He claims that denial of his Marsden request violated his state and federal constitutional rights to effective assistance of counsel. Defendant argues he demonstrated during the Marsden hearing that his trial attorney, Borrego, was not, and would not, provide him with effective assistance of counsel. Borrego announced ready for trial even though he had represented defendant for only one month and was unprepared for trial. Defendant argues Borrego had not obtained any medical evidence supporting defendant's sole defense of unconsciousness. Borrego failed to investigate, did not refer defendant for a psychiatric evaluation, and did not obtain any expert witness testimony. Defendant complains that Borrego willingly abandoned defendant's PTSD and unconsciousness defense, because defendant never received treatment for PTSD, resulting in an absence of any medical evidence. A. Applicable Law Regarding Defendant's Marsden Request
Defendant's Marsden request is subject to the following well-established rules. When a defendant seeks to discharge his appointed counsel and requests a new attorney based on inadequate representation, the trial court must permit the defendant to explain the basis for his request and to relate specific instances of the attorney's inadequate performance. (People v. Barnett (1998) 17 Cal.4th 1044, 1085; People v. Valdez (2004) 32 Cal.4th 73, 95.) A defendant is entitled to relief if the record clearly shows that the defendant's attorney is not providing adequate representation or that the defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely. (Barnett, at p. 1085; Valdez, at p. 95.)
Denial of a Marsden motion is reviewed under the abuse of discretion standard. (People v. Barnett, supra, 17 Cal.4th at p. 1085.) "[A] defendant bears a very heavy burden to prevail on such a motion." (People v. Bills (1995) 38 Cal.App.4th 953, 961.) There is no abuse of discretion "'unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel.'" (People v. Barnett, supra, 17 Cal.4th at p. 1085; People v. Valdez, supra, 32 Cal.4th at p. 95.) "'A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an "irreconcilable conflict."'" (Valdez, at p. 95, quoting People v. Welch (1999) 20 Cal.4th 701, 728-729.) B. Analysis
Here, the record does not support defendant's contention that Borrego's representation was deficient. A defendant must give specific examples of counsel's inadequacies, and cannot rest upon mere failure to get along with or have confidence in counsel. (People v. Bills, supra, 38 Cal.App.4th at p. 961.) During the Marsden motion, defendant's complaints regarding Borrego's representation were placed on the record, and these did not indicate good grounds for relieving counsel. The trial court gave both defendant and Borrego ample opportunity to be heard on defendant's Marsden request for a new attorney.
Defendant stated during the Marsden hearing that he did not want Borrego to represent him because, although he was "pretty good at his job," defendant did not feel confident that Borrego was ready for trial. Defendant assumed Borrego had not had sufficient time to prepare for trial because it had only been a month since Borrego substituted in after defendant had at least six public defenders represent him. Defendant also complained that Borrego had met with him only once outside of court and had not adequately discussed his defense with defendant. Defendant felt that Borrego was not zealously representing him. Defendant acknowledged he was concerned because he was facing at least 10 years in prison. When the court asked defendant to describe specific instances in which Borrego had acted inappropriately, defendant was unable to do so.
Borrego informed the court of his extensive experience as a criminal attorney. Borrego acknowledged he had been representing defendant for only a month but had read the notes provided by defendant's previous attorneys on the case. Borrego told the court he had made several attempts to meet with defendant but on several occasions, defendant told Borrego he was unable to meet with Borrego because he had to work. They finally met with the defense investigator and discussed the case for about an hour, with Borrego explaining to defendant every aspect of his case. Defendant provided Borrego with names of potential witnesses, who were contacted. Borrego told the court he did not want to reveal what the witnesses had said because doing so might be detrimental to defendant's defense. After Borrego's initial meeting with defendant, Borrego told defendant it was critical they meet again before the next court appearance and asked him to call Borrego to make an appointment. Defendant agreed to call but did not do so.
Borrego told the court that he had attempted to obtain as much information from defendant as possible. Borrego said he believed the incident was a result of defendant suffering from PTSD from his military service. Borrego noted that defendant was never examined for PTSD and there were no medical records establishing PTSD, because defendant did not want an examination for fear it would impact his ability to get civilian employment in law enforcement or security. Borrego told the court, "[W]e know something is wrong, but there's no information."
We conclude, based on defendant's and Borrego's statements made during the Marsden hearing, that the trial court did not abuse its discretion in denying defendant's Marsden request. The record shows Borrego properly represented defendant and would continue to do so. During the Marsden hearing, Borrego confirmed he had met with defendant, reviewed defendant's previous attorneys' notes, discussed the defense in detail with defendant, and received a list of potential witnesses from defendant who were interviewed. Borrego indicated he was prepared to proceed with the trial. Borrego explained he had had difficulty meeting with defendant because on several occasions defendant had said he was unavailable because of his work schedule. There was no failure by Borrego to provide adequate representation.
Defendant argues on appeal that Borrego's representation was deficient because he did not obtain medical evidence supporting defendant's PTSD and unconsciousness defense. But defendant did not argue this in the trial court, and did not complain that his attorney had failed to arrange for a psychiatric evaluation. As a result, these complaints were not addressed in the trial court during the Marsden motion. "A Marsden motion is a defendant's procedural vehicle for bringing to the trial court's attention a claim of ineffective assistance of counsel. [Citation.] The general rule concerning appellate claims of ineffective assistance is that often the alleged deficiency of counsel is not shown by the record on appeal; such cases do not lead to reversal of the judgment on appeal; rather the defendant is relegated to the remedy of habeas corpus, wherein the defendant can bring forth evidence outside the record on appeal. [Citation.]" (People v. Bills, supra, 38 Cal.App.4th at p. 962.)
Here, the record does not show why Borrego did not arrange for a mental evaluation of defendant or conduct additional investigation of his mental condition. It is conceivable that, as defendant mentioned, Borrego did not arrange for an evaluation of defendant's mental condition because defendant may have objected to such an evaluation out of concern it would prevent him from pursuing a career in law enforcement or security.
Defendant did not meet his burden of establishing during the Marsden hearing that his trial attorney was incompetent. The trial court therefore did not abuse its discretion in denying defendant's Marsden request for a new attorney.
V
UNCONSCIOUSNESS JURY INSTRUCTION
Defendant contends the trial court erred in not giving a jury instruction on involuntary unconsciousness (CALCRIM No. 3425), which is a complete defense to a charged offense. (§ 26; People v. Newton (1970) 8 Cal.App.3d 359, 376-378.) We conclude there was no error because there was insufficient evidence to support the instruction. A. Procedural Background
During a discussion of the proposed jury instructions, defendant's attorney requested the court to give the jury an instruction on unconsciousness. The prosecutor objected on the ground there was no evidence defendant was unconscious during the commission of the charged crimes. The prosecutor cited People v. Heffington (1973) 32 Cal.App.3d 1, for the proposition that defendant's testimony, that he did not remember what happened during the crimes, was not sufficient evidence to support an unconsciousness instruction. The prosecutor further argued there was no evidence defendant was acting without awareness during the crimes, such as from a blackout condition, epileptic seizure, or sleepwalking.
Citing People v. Newton, supra, 8 Cal.App.3d 359, Borrego responded that there was sufficient evidence to support the unconsciousness instruction. Defendant argued that his testimony showed he was in a blackout condition from before the date of the crime, until after he woke up in the hospital. The trial court agreed there was no evidence supporting an unconsciousness instruction. Over defendant's objection, the trial court denied the unconsciousness instruction, concluding more was required than evidence defendant did not remember anything about the crimes. B. Applicable Law
An instruction must be given only if it is supported by substantial evidence. Instructions on unsupported theories should not be given to the jury. (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) Doubts as to the sufficiency of evidence warranting an instruction should be resolved in favor of the defendant. (People v. Duckett (1984) 162 Cal.App.3d 1115, 1125.) "The general rule is that in a criminal case the trial court must instruct on the 'principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.]' [Citation.]" (People v. Barker (2001) 91 Cal.App.4th 1166, 1172.)
With this preliminary rule in mind, we must determine whether the trial court erred in not giving an instruction on unconsciousness (CALCRIM No. 3425). "A criminal defendant has the burden of producing evidence that he was unconscious if he wishes to rely upon that defense." (People v. Froom (1980) 108 Cal.App.3d 820, 830.) "'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."' [Citations.] The law is clear that in cases of unconsciousness caused by blackouts, involuntary intoxication, sleepwalking, or even epilepsy, an instruction is warranted where there is substantial evidence. (See People v. Sedeno (1974) 10 Cal.3d 703, 717 ['An unconscious act 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.] Cruz [(1978) 83 Cal.App.3d 308,] 330 [unconsciousness instruction should be given where there is evidence of involuntary intoxication]; People v. Freeman (1943) 61 Cal.App.2d 110, 118 [jury instruction required where the defendant's unconsciousness was due to epilepsy].)" (People v. James (2015) 238 Cal.App.4th 794, 805.)
"One who is unaware of his or her actions because of the lack of volitional capacity does not commit an act with either specific or general criminal intent, as those terms are understood in criminal law. A state of unconsciousness from whatever cause at the time of committing an alleged crime vitiates both specific and general criminal intents. Thus, we hold that the complete defense of unconsciousness under section 26 applies regardless of whether the actor's mental state of unconsciousness is induced by 'unsound mind,' including that caused by mental illness, and not just to those who are rendered unconscious by physical or organic conditions." (People v. James, supra, 238 Cal.App.4th at p. 809.) But "mere evidence of mental disease or defect, without more, does not raise the defense of unconsciousness and does not entitle the defendant to instructions on that issue." (People v. Froom, supra, Cal.App.3d at p. 830.) In the absence of substantial evidence of unconsciousness it is error for the trial court to instruct on the issue. (Ibid.) C. Analysis
Defendant argues there was substantial evidence he was unconscious when he committed the charged crimes. Defendant maintains the following evidence supports the instruction. During Employee's testimony, the prosecutor asked if it "appear[ed] as though [defendant] knew what he was doing." Employee answered, "[w]ith the gun, yes, asking for the money, not necessarily." Also, Owner and Employee both testified defendant told them during the robbery that he needed the money for his "kids," whereas defendant had only one child.
In addition, defendant argues Deputy Narcisco's testimony supported an unconsciousness instruction. Narcisco testified that, even though defendant was obeying all laws while Narcisco followed defendant on the freeway, defendant suddenly pulled over to the shoulder for no apparent reason. When defendant saw Narcisco had pulled over, defendant did not initially flee. He looked surprised and shocked, and asked, "[W]hat did I do." Then, after Narcisco pulled out his gun, defendant said, "oh shit," sped away, and crashed. Rather than showing unconsciousness, this testimony showed defendant was well aware of his acts, even if it is unclear as to why he voluntarily stopped on the freeway shoulder.
Defendant's testimony as to his mental condition also was insufficient to support an unconsciousness instruction. Defendant testified he served 13 months in a combat zone and, afterwards, his mental state had "changed." He said he was "shook," or shaken, by loud noises, and would wake up sweating and panicking.
The above evidence cited by defendant does not constitute substantial evidence that defendant was unconscious of his acts when he committed the charged crimes. Owner and Employee's testimony that defendant did not appear to know what he was doing when demanding money is insufficient to support a finding defendant was unconscious of his acts. In addition, defendant's statement during the crime that he needed the money for his "kids," when he only had one child, also is not evidence that at that moment he was unconscious or unaware of his act of robbing Owner and Employee. And while it is unknown why defendant voluntarily pulled over to the shoulder after the robbery, this act and defendant's subsequent acts leading to crashing his car do not demonstrate defendant was unconscious of his acts committed during the robbery. Although defendant testified he was unconscious of committing the robbery, he clarified that what he meant was he did not remember anything that happened during the incident. Defendant's amnesia, likely caused by the car crash after the robbery, does not support a reasonable inference that, at the time of the charged crimes, defendant was unconscious or unaware he was committing the charged crimes. (People v. Rogers (2006) 39 Cal.4th 826, 888; People v. Halvorsen (2007) 42 Cal.4th 379, 418; People v. Heffington, supra, 32 Cal.App.3d at p. 10.)
On the other hand, the evidence supports a well-founded finding that defendant knew exactly what he was doing. He volitionally robbed Owner and Employee because he needed money and then, after leaving the crime scene, fled from Narcisco, when Narcisco pulled out his gun to apprehend defendant. Defendant's testimony regarding his mental condition upon returning home after serving in the Marines was also insufficient to support an unconsciousness instruction. There was no evidence, and certainly no substantial evidence, that defendant was unconscious or unaware of his acts when he committed the charged crimes. The trial court therefore did not err in refusing defendant's request to give CALCRIM No. 3425 on the defense of unconsciousness.
VI
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.